BBC Mid-term Charter Review

Debate between Bernard Jenkin and William Cash

Thursday 9th May 2024 Commons Chamber

[Sir William Cash]

I can assure the hon. Gentleman that I have not lost anything at all. It is very simple. The fact is that in Parliament, we have proper debates by elected people and decisions made on matters of public importance, whatever the outcome and whatever the views expressed. They are democratically decided. The decisions put across by the BBC quite often are the result of a kind of centrist viewpoint, which I will come on to later, which is inevitably not consistent with the views of the public who pay for the benefit, if that is what it is to be called, of watching and listening to the programmes in question.

The Government review recommends that the BBC publishes more information on how it carries out its work on impartiality and how it responds to Ofcom’s challenge to improve its performance. A new complaints system has been established under the principle of “BBC First”, but the question remains whether that has worked. The number of complaints made to Ofcom about the BBC’s impartiality has increased, and the evidence is that the BBC is not meeting this challenge.

It is understood that there has been substantial disagreement between the Government and the BBC during the creation of this new complaints system, but it is still found wanting and Ofcom needs to improve its own performance. It is also understood that many former BBC employees with BBC sympathies remain in Ofcom and are involved in this process. That also represents a problem, the ultimate result of which is unsatisfactory. Clearly, the Government are not sufficiently satisfied with the BBC at the moment, or with Ofcom’s performance on this vital question. That is bad news. As the Government point out, the BBC has failed to have a sufficiently robust internal system for identifying the statistical data to determine its analysis of complaints. The Government state that the independence of complaints handling indicates that the BBC can do more to ensure that audiences feel that their complaints will be fairly considered.

A number of points need to be made. I know something of this, because the European Scrutiny Committee, which I chair, took evidence from the BBC nine years ago on the issue of bias. We criticised the BBC on the question of the European issue before the referendum took place. The distinguished Lord Wilson of Dinton made same kind of criticism of bias in his own report. All these years later, the Government remain concerned even now that the manner in which complaints are dealt with, and the data involved, continue to be profoundly unsatisfactory.

[Sir Bernard Jenkin (Harwich and North Essex) (Con)]

I am afraid that I am one of those who has been distracted, and I will not be able to remain to speak in the debate. I took a very great interest in the report by Lord Wilson of Dinton, not least because it did not denigrate the integrity of people in the BBC. It did uncover, however, an unconscious preconception about what certain views on the European community meant. The report was about the impartiality of the BBC when reporting matters concerning the European Union. It made a lot of people in the BBC extremely angry. People from the BBC told me that it should never have been commissioned, even though it was a totally objective report. When confronted with it, the BBC still gets very angry about it, which suggests that there is a different atmosphere in the BBC about certain issues. Nobody ever thinks that they themselves are biased, and the BBC does not think it is biased, but it can unconsciously produce a very one-sided approach to a particular issue such as the European Union—and, in that case, about the single currency.

[Sir William Cash]

Indeed. The proof was in the pudding and was demonstrated by the outcome of the referendum on 23 June 2016. My hon. Friend is right. Actually, this is about unconscious bias in some cases and very positive groupthink in others. That is where the problem lies—somewhere in between.

On a limited budget, the voluntary organisation News-Watch does the job extremely well. It states: “The BBC's continued stonewalling of complaints, inadequacies of Ofcom in its watchdog role and the lack of effective reforms proposed by the mid-term review to ensure impartiality remains a fundamental problem.” Thus, the national interest is undermined, and the right of the licence-fee payer to have a proper system in place is denied him. News-watch is calling—rightly, in my opinion—for much more radical reforms to ensure impartiality, with a fully independent complaints system, more transparency and accountability, and efforts to improve diversity of opinion among BBC staff through new staff-training initiatives to ensure impartial research and analysis. All those are urgent.

The mid-term review does not, in my opinion, provide a proper system for determining breaches of impartiality, and allows the BBC and Ofcom undue latitude in interpreting what the words “due impartiality” mean, leaving the BBC as its own judge and jury. Indeed, in the past year, the new BBC editorial complaints unit—otherwise known as the ECU—has upheld only one impartiality complaint. People simply will not believe that, but it is a fact. Neither the BBC nor Ofcom routinely publish detailed data on the vast majority of the nearly 2 million complaints received since Ofcom became the regulator in April 2017. The system is, therefore, not fit for purpose.

Ofcom’s own figures indicate that complaints relating to bias make up as much as 39% of the complaints, and complaints about misleading and dishonest content make up a further 26%, amounting to approximately 800,000 complaints about bias since Ofcom took over. Of the 155 complaints upheld or partly upheld by the new ECU system, only 33 were accepted as relating to bias, which is an absurd and minuscule proportion. We do not yet have the latest figures, those relating to 2023-24, but the provisional information indicates that the ECU considered 374 complaints, of which only 2.7% were fully or partially upheld and 89% were not upheld. The situation is shocking and demonstrates an intrinsic failure of the system. It must be made fully independent, and must not be judge and jury.

[Sir William Cash]

It is at the heart of the BBC’s priorities in theory, but not in practice. Ofcom is insufficiently independent, and it is understood that there are deep concerns about the entrenched ties between its content board and the BBC—which still persist—and, therefore, a lack of accountability. A mere 56% of the public now believe that the corporation is impartial. The BBC refuses to engage with complaints that do not refer to single programme items, and there is a lack of comprehensive research into audience perceptions of bias.

I noticed an important letter in The Daily Telegraph on 23 January this year from Baroness Deech, a distinguished Cross-Bench peer and King’s counsel who was a governor of the BBC from 2002. Regarding the publication of the mid-term review in January, she wrote that

“Complaints are seen by the BBC as very sensitive matters, threatening the independence of the editors: witness the lengths to which it has gone to keep secret the Balen Report on its bias against Israel.”

She argues that

“The best way to handle complaints would be to appoint an independent ombudsman from outside the media industry, supported by experts on the topic at issue.”

I believe she is right. She confirms that

“Ofcom is heavily staffed by former BBC and media professionals who may be as touchy as their current counterparts at the notion of bias at the BBC.”

It is not just a notion: it is clearly apparent, and that is what the public think.

It is also interesting to note the views of distinguished BBC insiders, who know how the system works on a daily basis and have been openly critical of the BBC’s performance while they were employed as top-line and experienced presenters and commentators within the BBC for decades. I recommend that anyone who is interested in this subject reads Roger Mosey’s book “Getting Out Alive”, which gives a very good insight into issues of bias by the BBC on the question of Europe. He recalls a “Today” programme meeting when Rod Liddle was confronted by a producer who said disparagingly,

“‘The Eurosceptics believe Germany is going to dominate Europe!’ This generated laughter from bien pensant colleagues”

about the ridiculousness of that idea.

“‘But what if it’s true?’ was the response from the editor, and he set the team thinking about items that would examine whether Euroscepticism had some well-founded beliefs”

As Members will recall, at that time nobody thought for a minute about the simple question that those of us who were campaigning on the European issue—in my case, having come into the House in May 1984, I have campaigned continuously for 40 years—were trying to get across: “What does the European Union and its related matters mean for the British people?” That is an example of how the system can work—when reason prevails, as demonstrated by the editor of the “Today” programme.

Mosey also refers to the issue of asylum seekers in the summer of 2003, when Tony Blair was Prime Minister.

Mosey said that the people he describes as the “editorial policy people” asserted in this context that the issue was being led by an

“angry tabloid agenda and extreme Right-wing groups”.

Mosey replied strongly to the editorial policy team, saying among other things that the

“asylum debate is one in which we’ve done rather badly in reflecting the concerns of our audiences or the genuine crisis faced by the government in dealing with the issue”.

That was in Tony Blair’s time, let along now. Later, he mentions:

“Two years ago when it started being raised, we did not realise the level of unease about the issue”.

Now, two decades later, the position remains the same.

I also recommend John Humphrys’s book “A Day Like Today”, particularly, after 33 years of political interviewing, his conclusion:

“Today presenters and their stablemates do have questions to ask themselves. Does an interview always have to be so combative? Does there have to be a winner or loser”—[Interruption.]

John Humphrys, and he knows what he is talking about, unlike the hon. Member for Rhondda (Sir Chris Bryant), says that

“if it does, the loser might very well be the public. If we interviewers succeed, albeit unintentionally, in convincing the listener that all politicians are liars, the real loser is our system of representative democracy that has served the nation so well for so long”,

to which I say, “Hear, hear.”

[Sir Bernard Jenkin]

My hon. Friend is making a very important speech. I would just draw the House’s attention to when I was new young Back Bencher in the early 1990s, and two or three of us, including my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith), finally got a meeting with the “Today” programme’s editorial team, which I think included Rod Liddle. We started to explain to them why joining a single currency in the European Union might be a rather bad idea and they were very interested, but they were greeted with derision when they went back to the BBC and suggested that our arguments should be taken seriously.

[Sir William Cash]

The short answer is that we got the verdict on 23 June 2016, as we all know.

The problem is that the BBC is incapable of enforcing its own rules on impartiality, largely because the overwhelming majority of the corporation’s journalists as pivotal staff—as one hears, even from Members of this House who have worked for the BBC—are signed up to a left-liberal political worldview in which group-think and woke prevail, and any who diverge from the worldview they hold makes those who differ from them targets for criticism and worse, including ridicule.

United Kingdom Internal Market Bill

Debate between Bernard Jenkin and William Cash

Consideration of Lords amendments & Ping Pong & Ping Pong: House of Commons
Monday 7th December 2020 Commons Chamber

[Sir William Cash]

When I read the account of proceedings in the House of Lords, I found that the Lords were very strong on assertion, but empty when it came to the question of argument. I found that rather disturbing, because, after all, they have potential power under the Parliament Acts. I also appreciate that, towards the end of the proceedings, in reference to the powers in part 5 of the Bill, and the clauses under discussion regarding “notwithstanding”, Lord Judge said:

“‘We may need these powers at some stage’. Maybe we will; I hope not.”

He then said that it would be

“open to the Government to come back to us, to Parliament, to put before us emergency legislation.” —[Official Report, House of Lords, 20 October 2020; Vol. 806, c. 1431.]

The circumstances that we face could not be more important and relevant, and my view is that what he said effectively conceded the principle.

[Sir Bernard Jenkin]

I was going to make exactly that point. Lord Judge, very respected as he is, basically conceded the principle that we might need “notwithstanding” provisions to overturn the provisions in the withdrawal agreement. We are not talking about the principle anymore; we are just talking about when it would be appropriate to introduce the provisions. They might as well be introduced now with the parliamentary safeguard that the Government have conceded.

[Sir William Cash]

More or less the same took place in my exchanges with my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), who said very much the same. There is a threshold beyond which it would be necessary for us to take such action. Without going into the detail, I just wanted to put those two things on the record.

The issue is, and basically always has been, about parliamentary sovereignty. In the UK context, this is an internal law of fundamental importance, as expressed in article 46 of the Vienna Convention. It is by virtue of parliamentary sovereignty that we have taken the line that we have. I certainly have taken that line on many occasions, including in my proposal for section 38 of the European Union (Withdrawal Agreement) Act 2020, which I referred to earlier, and which has the whole concept of “notwithstanding” built into it. Section 7A of that Act also deals with direct effect. Given that the Act was passed with a large majority in the House of Commons, and then passed again in the House of Lords without any dissent of any description, I find it quite extraordinary that this has been turned into a matter of such fundamental anxiety, without any supporting argument that I have ever seen.

When I read the debates, I found there was a great deal of posturing going on. I understand the emotional concern of some people who are quite incapable of accepting that we have lawfully left the European Union; that a series of enactments were passed by both Houses; and that, on top of that, we had a general election—not to mention that under the Salisbury-Addison convention, it would be inconceivable, in the context of a general election manifesto, for the Lords to take a stand against these clauses if the House of Commons passed them again tonight, and perhaps again on another occasion.

Why do I say all this about constitutional and international law? I will deal with that very briefly. First, in my judgment, the European Union has breached article 184 of the withdrawal agreement, which is about negotiating in good faith. It has manifestly multiplied that fault over the past few days by refusing to accept the manner in which the negotiations have been conducted so far. There is also the question of its demand to retain power over crucial aspects of our sovereignty—both economic and relating to our national interest—as a precondition to concessions on trade.

The EU has also, in my judgment, breached article 184 on the basis of the recognition, as it puts it, of our internal market. I believe in the basic principle that one party to a treaty cannot obtain from the other the execution of its obligations if it does not respect its own commitments. If the EU continues to act as it has done in the negotiations, particularly over the past few days, the United Kingdom would be entitled to terminate the withdrawal agreement on the basis of the EU’s breach of article 184.

Lastly, as I said in Committee and on Report, there is a long list of occasions when Conservatives, Labour and Lib Dems, as part of the coalition, have agreed to override treaties. There are not just one or two quite explicit examples, but hosts of them. In infinite Finance Bills and Independence Acts, and in relation to prisoner voting and various other things, there have been quite clear and deliberate overrides of treaties. The EU, as well as the EU member states, frequently violates international law; the Western Sahara case, the defiance of security council rulings, and breaking the Lisbon treaty are a few examples.

Indeed, in conclusion, the EU grants supremacy to its own constitutional principles when they are in conflict with international law. In the Kadi case, the European Court stated:

“The obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the…Treaty”.

So there it is. I say again that I strongly support the Government’s position, and reject the amendments by the House of Lords.

European Union (Withdrawal) (No. 5) Bill

Debate between Bernard Jenkin and William Cash

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 3rd April 2019 Commons Chamber

[Sir William Cash]

I certainly have. The Speaker has ruled on the matter, and I take the view that if the Speaker has ruled, even if I am unhappy with the ruling, that means that I need not go into all the details. I could spend the next 20 minutes giving all the reasons that I believe that there should be a money resolution, but I will resist the temptation because I want to get on to the meat of the Bill. The fact that it is known that it could cost as much as £90 billion is, I should have thought, enough to alert a great many people and make them seriously worried about whether they should vote for it, and I hope that they will not.

Clause 1(1) is mandatory, and gives rise to the important constitutional question whether Parliament can direct a Prime Minister to move a motion. That is constitutionally ridiculous. In clause 1(2), to which my new clause 4 refers, the “form of the motion” is not mandatory, stating that the House

“agrees for the purposes of section 2 of the European Union (Withdrawal) Act 2019 to the Prime Minister seeking an extension”.

If passed, the provision would permit the Prime Minister to seek an extension, but that in itself would not force her to ask for it. However, neither clause 1(4) nor clause 1(5) sets any time limit relating to when the Prime Minister must seek the extension, or explains how that would be achieved. Is enough time available for all this to be done? The answer is clearly no.

I assume that Royal Assent would be given after the Bill had been to the House of Lords. God knows what the House of Lords is going to make of it. The House of Lords has a Standing Order, Standing Order No. 72. What have the Government done, no doubt with the connivance—if that is not an inappropriate expression—of my right hon. Friend the Member for West Dorset (Sir Oliver Letwin)? They have simply knocked out Standing Order No. 72, which is an outrageous and completely unconstitutional act.

[Sir Bernard Jenkin (Harwich and North Essex) (Con)]

My hon. Friend has questioned the ability of the Act to be enforced. My Select Committee, the Public Administration and Constitutional Affairs Committee, put that question to Lord Judge, the former Lord Chief Justice. I asked:

“How would this be enforced?”

He replied:

“I think it could only be enforced politically by the House of Commons. Please do not think for one moment that anybody should be able to seek a judicial review. Not only would it be ludicrous for the judiciary to be involved in deciding a political question, but they would have a way out if anybody took that step, by saying that there is an alternative remedy—to go back to the House of Commons. That is the only way it could possibly be enforced, in my view. It would be up to the House.”

Is this not a completely useless piece of legislation?

[Sir William Cash]

It is not only completely useless, but it is rubbish. I see that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) has just come into the Chamber. Let me ask him, if I may, whether he drafted this Bill. He drafted a great many amendments during the passage of the withdrawal Bill itself back in 2017-18, and I noticed that quite a lot of them were so bad that they had to be junked.

--- Later in debate ---

[Sir William Cash]

I want to make some trouble. The people of Wales, Scotland and Northern Ireland might well have strong interest in the extent to which they are involved in this process. My amendment is a means to provide them with that opportunity. I will not contradict what the hon. Gentleman says. Under our constitutional settlement, there is a Scottish Parliament, a Northern Ireland Assembly and a National Assembly for Wales, so I would have thought that they will be extremely interested to know whether they were being cut out of the process prescribed in the Bill. It is not my fault that the Government made proposals and had all the joint committees that the various leaders of the devolved Assemblies complained that they had not been properly involved in. I am giving them a chance to be involved. He may be right about the legislative consent point, but I am right to think that in relation to this crazy Bill it would at least be useful for the people of Northern Ireland, Scotland and Wales to be able to make their contributions in their devolved legislatures. I think that point is worth making, and I therefore intend to press amendment 6 to a vote. Of all the amendments I tabled, that is the one that I want to move most.

[Sir Bernard Jenkin]

I will be as brief as I can. I want to speak against clause 1 stand part. The clause is the heart and strategic intent of the Bill. It is trying to put this House in a position to stop the United Kingdom leaving the EU on the date on which the Government might want us to leave. There is no question about that.

I very much agree with my hon. Friend the Member for Camborne and Redruth (George Eustice) who made the point that the process of attrition in this House to limit the Government’s negotiating freedom in the end very much undermined their ability to get a better deal and to negotiate from a position of strength. If people cannot walk away from a negotiation they are in, and they have to agree something at the end of it, the other party simply calls the shots. That certainly strengthened the hand of those who want us to have a bad deal. I have made some points in the debate on one of the earlier business motions about the constitutional impropriety of this whole process.

I also invite the Committee to reflect on what this House looks like tonight as we discuss such highly technical issues. The British people expect us to be discussing the big principles of whether we should leave without a deal on WTO terms or sign up to the withdrawal agreement. This particular debate, however, seems particularly obscure and unavailable to voters. It will make this House look particularly out of touch, especially because the Bill is somewhat otiose.

I have argued for some time with colleagues on the Conservative Benches that the Prime Minister has demonstrated little intention of ever leaving without a withdrawal agreement. The fact that the Government have spewed out a whole raft of information basically about why they do not want to leave without a deal underlines that point. I therefore think that the Bill is unnecessary.

In my comments to my hon. Friend the Member for Stone (Sir William Cash), Chair of the European Scrutiny Committee, I pointed out that the Bill is also unenforceable. Just look at the wording of subsection (4), which is that

“the Prime Minister must seek an extension of the period specified in Article 50(3) of the Treaty on European Union”.

What does “seek” mean in the circumstances? What happens if the Prime Minister makes a telephone call asking for an extension, says “Thank you very much” to what is offered, and puts the phone down again? How will that process be scrutinised and made accountable? How do we judge what is a serious seeking in good faith, and what is a mere technical seeking? That underlines the total futility of the House attempting to legislate in this way. Our system of government is not set up for Parliament to legislate for detailed instructions on how Ministers should carry out their duties. We tend to make laws on a much more general basis than that. That is why the system just does not work.

[Sir Bernard Jenkin]

Yes, and we absolutely know why the Bill is framed in these very vague terms—it is precisely to avoid its falling foul of rules that require a money resolution for a Bill that gives more specific instruction.

[Sir William Cash]

My hon. Friend—a good friend—is making very good points. This also gives rise to the question of scrutiny, which he mentioned. My Committee will undoubtedly have to try to work out how to deal with these scrambled eggs; and how will the House of Lords deal with this, given that it has disallowed Standing Order No. 72? Will it truncate its business to such an extent that it will not be able to get this right? Who will get this right?

[Sir Bernard Jenkin]

I will not attempt to answer that question, because it answers itself. Nobody will be held accountable for what goes wrong as a result of the Bill.

If the Prime Minister goes to the European Council for an extension—I have long been reconciled to the expectation that she will—what really matters are the conditions that come with it. Where is the accountability for the conditions that will apply? Or will she simply accept an enforceable agreement with conditions, and bring it back to the House as a fait accompli, as she did originally?

United Kingdom’s Withdrawal from the European Union

Debate between Bernard Jenkin and William Cash

Friday 29th March 2019 Commons Chamber

[Sir William Cash]

That is exactly the point. I see the Solicitor General chuntering a little. He is a good friend of mine, but I have to say that he knows this is a serious point––the Attorney General referred to private conversations I have had, and I will now refer to one that I had with both him and the Solicitor General—and he acknowledges that it would need to be sorted out, because there is a serious worry.

What happened can be very simply stated. On 26 June last year, we passed the European Union (Withdrawal) Act 2018, section 1 of which states that the European Communities Act 1972 is to be repealed on exit day. Exit day operates in lockstep with whatever exit day turns out to be. However, the reality is that, because of the saving provisions, and under article 4, on the capacity of the Court to disapply enactments, it is just conceivable—indeed, it is highly possible—that issues of interpretation could arise.

We need to discuss this properly, but we cannot do so until we see the implementation Bill. I know that the Solicitor General agrees. In fact, some Secretaries of State—I will not disclose which—have told me that they think we should see a copy of the Bill, because until we see the drafting, we will be unable to judge its impact on the repeal of the 1972 Act, which itself is the anchor of the referendum. I repeat the point that the referendum was itself endorsed by a sovereign Act of this Parliament that transferred the decision to the British people, and the British people make that decision, in line with the wishes of the electorate.

[Sir Bernard Jenkin (Harwich and North Essex) (Con)]

I am perfectly clear that whatever the public voted for in the referendum, or at the last general election, nobody had a clue that they would be voting for a withdrawal agreement anything like the one before the House today. May I ask my hon. Friend about a matter of good faith? I interpreted the Attorney General’s remarks to be a suggestion that we should perhaps approve the agreement today in order to satisfy the technical terms of the extension agreed by the EU27, on the basis of some kind of ruse to get a further extension, even though we have not actually approved the withdrawal agreement and the political declaration in the terms that we said we would. Is that an act of good faith with our European partners?

[Sir William Cash]

I very much agree with my hon. Friend. Indeed, I will go further and say that the change of gear between 26 June, when the withdrawal Act received Royal Assent, and 12 July, when the White Paper that followed the Chequers proposals was published, demonstrated bad faith, because it must have been pre-planned while the withdrawal Bill—which I thoroughly agreed with and gave the Government every conceivable assistance in getting through––was going through Parliament. The reality is that it was produced only 10 days later, so we need only ask how the Government could write an 80-page White Paper without planning it some months in advance.

EU Exit Day Amendment

Debate between Bernard Jenkin and William Cash

Wednesday 27th March 2019 Commons Chamber

[Sir Bernard Jenkin]

I am going to press on.

This House has now embarked upon an unprincipled constitutional experiment. The Public Administration and Constitutional Affairs Committee, which I chair, recently heard from a retired Lord Chief Justice that nothing like this experiment has occurred since the recasting of the role of Parliament in 1688, which shows just how radical it is. I recognise the sincerity of many right hon. and hon. Members involved in the experiment, but they have resorted to the most questionable constitutional methods, which leave no Government or anyone else accountable for what is being decided. Who will the voters now hold to account for the outcome of the Brexit question?

Moreover, the process has been supported by those either embarking upon embellishing the discredited withdrawal agreement with ever greater restrictions on our right of national democratic self-determination or seeking to disrupt Brexit or stop it altogether in defiance of the manifesto promises upon which most of us were elected. I therefore regret to conclude on these matters, including these regulations, that this House is left with questionable democratic legitimacy.

[Sir William Cash]

I absolutely endorse what my hon. Friend has said. I remind Members, including those on the Conservative Benches, that they voted consistently for the Acts of Parliament, including the European Union (Withdrawal) Act 2018, that will give effect to all the enactments and that to pursue such an objective is effectively to reverse their decisions on specious and unacceptable grounds.

European Affairs

Debate between Bernard Jenkin and William Cash

Thursday 15th March 2018 Commons Chamber

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

I shall proceed as quickly as possible. The hon. Member for Sheffield Central (Paul Blomfield) rather marred his speech by playing the man and not the ball. It is much better if we deal with the arguments, instead of imputing motives or sentiments that were at that very moment being disowned by my right hon. Friend the Member for Wokingham (John Redwood). That was rather unfortunate.

I wish to point out that the agenda is not being set by a small group of MPs; it is being set by the British people—more than 52% of the electorate. Those who argue against leaving the customs union or for staying in the single market are arguing against the right of the British people to take control of their own affairs. Let us make no bones about this: the Labour party has now adopted a position in favour of some kind of weaselly half-Brexit, which is not what the British people voted for. The Prime Minister said that she does not recognise any distinction between hard or soft Brexit; there is leaving the European Union or somehow staying in, which seems to be the position the Labour party has now adopted.

Let me set out two contexts. First, many who supported remain seem to believe that people who voted leave in the referendum were voting to turn their back on the world. They claim that the UK’s decision was driven by isolationist and xenophobic undercurrents and see the leave vote as representing intolerance, prejudice and a call for protectionism. Vote Leave did not campaign for that. We deliberately left the Vote Leave website up—Members can take a look if they like. Vote Leave did not argue for isolation, intolerance or economic protectionism. Those may be the views of a vociferous minority, but the Ashcroft polling that was undertaken at the time of the referendum found that for nearly half of leave voters, the biggest single reason for wanting to vote leave was

“the principle that decisions about the UK should be taken in the UK”.

Lest we forget, that is the first context. The debate was about taking back control—about democratic self-government and our country’s right to make its own laws, to decide its own taxation and spending and to choose how it engages with other countries on matters such as trade, foreign affairs and defence. It was about leaving a bloc that is not only in relative economic decline but increasingly in a state of economic and political crisis.

[Sir William Cash]

I very much agree with my hon. Friend. Had the speeches by Mr Juncker and President Macron about moving towards a more integrated Europe—a sovereign Europe, as President Macron says—been put to the British people before the referendum, we would have had a proportion of the vote vastly greater than 52%.

[Mr Jenkin]

I was going to make that point later in my speech, but shall no longer do so, for the sake of brevity.

The EU undermines democracy, prosperity and international co-operation. It is plagued by high unemployment, high debts, an ageing population that is much too dependent on state welfare, a dysfunctional euro, unaccountable political institutions and a democratic crisis. It puts up barriers to the combination of world-class universities, technological innovation and venture capital that is fundamental to the technological innovation on which the future of our economy depends.

Since the referendum, we have seen the landmark statements to which the Chairman of the European Scrutiny Committee, my hon. Friend the Member for Stone (Sir William Cash), referred. In fact, Martin Schulz, the former President of the European Parliament, wants a full united states of Europe by 2025. The formation of the euro, which was always a political project, transformed the EU, making full integration an imperative to try to prevent the eurozone from breaking up. In the end, the euro will fail anyway, because there is no political consent for the scale of fiscal transfers necessary to compensate for the huge internal trade imbalances.

The second context is economic. Shortly before the referendum, the Treasury forecast that a leave vote would inflict an economic shock on the UK, leading to reduced trade and foreign direct investment, recession, and the loss of 500,000 jobs. I am sorry to disappoint the hon. Member for Sheffield Central, but the Treasury’s analysis has proved to be manifestly wrong. It also ignored the long-term future of global trade and economic growth. Between 2016 and 2017, UK GDP increased by 1.7%, and economic growth continues to surpass expectations. Tax receipts are higher than expected, and the UK is running a current budget surplus for the first time since the year leading up to July 2002—long before the crash, and two years earlier than anticipated just last year. UK unemployment has continued to fall from 8.5% in late 2011 to 4.4% in late 2017, and the unemployment rate was recently at its lowest point since 1975.

Although some businesses are moving parts of their operations to other EU countries, the number of jobs being moved is significantly lower than expected. Foreign direct investment has continued to grow and, since the referendum vote, there has been a string of major inward investment decisions. In fact, the year of the referendum, 2016, turned out to be another record year for inward investment. We have seen Wells Fargo committing to a new £300 million London headquarters and Nissan announcing its new Qashqai and X-Trail models to be built in Sunderland, making Sunderland a super plant of 600,000 vehicles a year. In December 2017, GlaxoSmithKline revealed its plans to invest £40 million in the UK’s life sciences sector. At the beginning of this month, Siemens committed to building a £200 million train manufacturing plant in the UK if it wins orders for new rolling stock, and, just last week, Toyota announced that it will build the next generation of its Auris hatchback at its Burnaston plant in Derbyshire, including a £240 million upgrade of the plant.

That is not a matter for gloating or complacency, but it shows that inward investment is not dependent on membership of the EU. What about the longer-term prospects for trade and economic growth? In recent years, UK trade has shown a well-established trend, as the proportion of UK exports sent to the EU has been declining. It peaked at 54% of UK exports in 2006. By 2016, that had fallen to 43%. That decline in the importance of our EU trade has set in despite the UK being in the EU, in a customs union and in the single market. Conversely, over the same period, the non-EU share of UK exports has increased. For example, China’s share of UK exports grew from 1.6% in 2006, worth a mere £5.4 billion, to 3.3%, worth £16.8 billion, in 2016.

Trade has also grown significantly with the Commonwealth. UK exports to Commonwealth countries have increased from 8.8% of our exports, worth £21.5 billion, in 1999 to 8.9%, worth £48.5 billion, in 2016. The Commonwealth is a fast-growing market, reflecting much of our language, values and administrative and constitutional heritage, and therefore has great potential for the UK.

The EU is still the UK’s largest trading partner if taken as a bloc, but if we consider individual countries, the UK’s largest trading partner is the United States of America. It seems to have passed the hon. Member for Sheffield Central by that, while the UK has had a trade deficit with the EU every year since 1999—worth £82 billion in 2016—we achieved a £39 billion trade surplus with non-EU countries in 2016. Outside the EU and the customs union, the UK will be able to develop new trading relationships with many of these countries, but not under his party’s policy. Some of these opportunities, including the possibility of joining the Trans-Pacific Partnership and the strong prospects of a comprehensive free trade agreement with the US, including financial services, more than match the potential of our existing relationships with the EU.

The 11 TPP countries have a population of almost 500 million people and represent more than $10 trillion in economic output, which is 13.5% of the global total. The Commonwealth has a population of 2.3 billion people. A comprehensive trade deal with the US, which includes services, would give UK firms better access to its population of more than 320 million and to the world’s largest single economy. With the UK accounting for 7% of world service exports and the USA 15%, they would together account for over a fifth of the global total—a market of huge significance.

Outside the EU, the UK will also be better placed to develop trading opportunities with countries in Asia and Africa, where the most rapid growth is expected to occur in the future. When concluding free trade agreements, we can set our own negotiating priorities that best match our economic interests. The EU has historically represented the UK’s interests poorly not just because it is incredibly slow, but because, inevitably, the EU cannot prioritise UK trading interests such as access for services, which is, of course, of prime importance to our economy. EU negotiators have to take account of 28 states’ interests, which can be very different from our own, and to reflect the protectionist priorities of producer interests, such as the Italian shoe industry, French agriculture and the German chemicals manufacturers.

European Union (Withdrawal) Bill

Debate between Bernard Jenkin and William Cash

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Mr Jenkin]

It is for the European Court of Justice to continue to interpret what the charter of fundamental rights actually means within the European Union, so if the charter was incorporated into our law, what relationship does my hon. Friend think would exist between our Supreme Court and the interpretations that would continue to be developed in the European Union?

[Sir William Cash]

The Supreme Court would be applying the European interpretation in that context, and I simply say that it will involve disapplication of law. It is a matter not of assertion but of fact and law that that is precisely what will happen.

I urge my right hon. and learned Friend the Member for Beaconsfield and others not to press their amendments on the charter, because to do so would be totally unacceptable. I refer to what I have alluded to already: the principle set out by Lord Justice Bingham in chapter 12 of his magisterial book on “The Rule of Law and the Sovereignty of Parliament?”, in which he publicly criticised the attitude of Baroness Hale, now President of the Supreme Court, and Lord Hope of Craighead in suggesting that the courts have constitutional authority, as against an Act of Parliament. With respect to the whole question of parliamentary sovereignty and the issue of the courts, he says that various remarks had been made but:

“No authority was cited to support them, and no detailed reasons were given.

I cannot for my part accept that my colleagues’ observations are correct... To my mind, it has been convincingly shown”—

by Professor Goldsworthy, one of the greatest authorities on this subject—

“that the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot by themselves change it… What is at stake”—

said Professor Goldsworthy—

“is the location of ultimate decision-making authority… If the judges were to repudiate the doctrine of parliamentary sovereignty, by refusing to allow Parliament to infringe on unwritten rights, they would be claiming that ultimate authority for themselves.”

Moreover, Lord Bingham went on to say that they would then be transferring the rights of Parliament to judges:

“It would be a transfer of power initiated by the judges, to protect rights chosen by them, rather than one brought about democratically by parliamentary enactment or popular referendum.”

With some irony, the Bingham Centre for the Rule of Law has put some of the contrary arguments.

Exiting the European Union and Global Trade

Debate between Bernard Jenkin and William Cash

Thursday 6th July 2017 Commons Chamber

[Sir William Cash]

I will not give way just yet.

The speech by Mr Barnier today is extremely relevant, and I have the benefit of having the full text here. I will not go through every detail of it, I can assure you, Madam Deputy Speaker, but I note that some of the things that he said are highly relevant to what my right hon. Friend the Secretary of State rightly pointed out in his speech. On the question of what happens if there is no deal, Mr Barnier said:

“Here also, I want to be very clear: in a classic negotiation, ‘no deal’ means a return to the status quo. In the case of Brexit, ‘no deal'”,

he claimed,

“would be a return to a distant past.”

He is wrong—that is not the case. I think the hon. Member for Brent North said that under the World Trade Organisation tariffs, there would be a 40% tariff on lamb, but even Mr Barnier says that custom duties would include

“an average of 12% on lamb and also fish”,

which is very different from what the hon. Gentleman asserted. I do not blame him—he was speaking from memory, so I am not criticising him—but I am just pointing out what Mr Barnier said.

Mr Barnier also made the extraordinary assumption:

“In practice, ‘no deal’ would worsen the ‘lose-lose’ situation which is bound to result from Brexit.”

Again, he is wrong. He went on to say:

“And I think, objectively, that the UK would have more to lose than its partners.”

That is just not so. He then went on to reveal what is really going on at the EU and with his negotiating position:

“I therefore want to be very clear: to my mind there is no reasonable justification for the ‘no deal’ scenario. There is no sense in making the consequences of Brexit even worse. That is why we want an agreement.”

They want an agreement because they know, just as Allister Heath, the distinguished editor of The Sunday Telegraph, pointed out in an article two weeks ago, that German car makers are getting really worried about the idea that there will not be an agreement, because that is not in their interests either.

On trading relationships, it is absolutely essential to remember that, while we will continue to have some 40% of our trade—although the figure is declining—with the internal market, or the framework of the remaining 27 member states, we run a monumental deficit of £71 billion a year with the EU, as the hon. Member for Luton North (Kelvin Hopkins) has said. That figure went up by £10 billion last year alone, and we do not even have this year’s figures, which will be even greater. The Office for National Statistics may have indicated to my right hon. Friend the Secretary of State how much worse they will be by this time next year.

By the same token, our global trade surplus with the rest of the world, in goods and services, imports and exports—that is the golden thread and the parameter that international trade statistics rely on—is expanding at an enormous, accelerating rate. That is the basis of our future prosperity. I say with respect to Opposition Members that more effective trade with the rest of the world, including taxing companies, will result in greater profitability. Out of that enormously growing prosperity zone, we will be able to pay for the public services that the public want and we want. The national health service will actually have more money at its disposal as a result of our successful international trading relationship with the rest of the world.

Mr Barnier went on to make an interesting observation:

“To my British partners I say: a fair deal is far better than no deal.”

That may be how it looks, but the truth is that they have to be very careful that they do not put us in the position of having to accept the idea of no deal. If that happens, as my right hon. Friend the Secretary of State has said, the advantages to us of trading on WTO terms are simply not unsatisfactory at all—quite the opposite. We all need to be realistic.

Interestingly, Mr Barnier then referred to the great port of Zeebrugge, which he said he will visit shortly,

“and for which the UK is the primary market with 17 million tonnes of roll-on roll-off traffic in 2016”.

He went on to say that he could not imagine, in the interests of the UK, Flanders and Belgium, that it would be a good idea to have

“an interruption of supply or a highly efficient organisation being called into question.”

We do not want a trade war over ports with the rest of the European Union. As I pointed out in an intervention, it was the EU that introduced the ports regulation. We had a massive row in the House of Commons, including in Committee, and I have been dealing with the issue as Chairman of the European Scrutiny Committee for the past two years. It is, however, going ahead, and the reason for that is that there is no way we can stop it. That is the response to the questions that have been asked. The reality is that until we get our sovereignty back and get the ability to run our own ports system on our own terms, we will be subjected to things like the ports regulation, which was put through by a majority vote behind closed doors. Nobody really knows who decided what. I tried to find out, but we could not make any serious progress in discovering who was making decisions. A lot of it, I think, was coming from Hamburg, because it has an enormous interest in preserving its own position.

The imposed rules were rejected by every single one of our 47 ports—not just the employers but the trade unions, which all piled in and said, “We can’t tolerate this new ports regulation.” Yet there it is, going through, if it has not gone through already while we were away for the general election. The bottom line is that our ports are the arteries for the lifeblood of our international trade, and they have been such for four centuries, as my right hon. Friend the Secretary of State said.

[Mr Jenkin]

I remind my hon. Friend and the House that the reason it is a ports regulation is that when it was a directive it was blocked by the European Parliament. So undemocratic is the EU’s legislative system that the Commission can force it through as a regulation, so even the European Parliament cannot block it. What kind of democracy is that, and is it not a good thing that we are getting back control over our laws?

[Sir William Cash]

My hon. Friend and I have been battling on these questions for 30 years, including since Maastricht. He hits the nail on the head. Democracy is lacking in the European Union. The freedom of choice to which Donald Trump referred today—the freedom of sovereign nations to decide their own democratic decision-making processes, including the right to determine their own trade policies—does not mean that there is anything negative about our ability to deliver what is in our national interest. All our history, and every single aspect of our life in this Parliament for centuries, has depended on our ability to make up our own minds about what is in the interests of our own electorate, based on the general elections at which they exercise their freedom of choice. That freedom of choice is based on the word “freedom”.

The key point is that, as the likes of John Bright and Richard Cobden understood, freedom includes freedom of choice—freedom of choice in the marketplace and economics, and freedom of choice to make electoral decisions in the ballot box. That is why they worked towards giving working people the right to vote in 1867. It is all about freedom; when we have that freedom, we will be able to make decisions in our own national interest. My right hon. Friend the Secretary of State is right to say that we have done so successfully for centuries.

European Affairs

Debate between Bernard Jenkin and William Cash

Thursday 25th February 2016 Commons Chamber

[Mr Jenkin]

We should be ready to recognise the EU institutions our continent has inherited as so last century, but I was going on to say that we must never forget the forces of history and the tragic errors of the past that have shaped the present on our continent, although we must also have the courage to embrace the change in our society and in the world that will otherwise leave us stranded with and clinging to outdated ideas and constructs. Our main contention is exactly that; the EU is an outdated construct.

[Sir William Cash]

Does my hon. Friend agree that if we remain we would in effect be in the second tier of a two-tier Europe dominated by other countries?

[Mr Jenkin]

That is a whole new argument, which I accept, but I am not going there now.

The referendum represents not just a turning point in itself, but just one point on a trend that is increasingly paralysing our entire continent, the unity of which is being shattered by the very institution that was intended to unite it. Let us look at the eurozone and at the Schengen free travel area and the migration crisis. Whereas in 1975 my party, myself included, was enthusiastic for membership of the European Communities, today my party—and, I believe, my country—knows that the world is utterly different.

Today, the strongest arguments for remaining appear to be ones saying that we are determined not to participate in the three main purposes of the EU: we will not join the euro, we will not join the Schengen free travel area and we will not be in a political union. What is the point of our being in this arrangement when we are so opposed to its principal purposes?

I must say that we have heard a certain amount of this debate before, as the Minister for Europe will recognise. Much of it is familiar from the Maastricht debates 20 years ago. We were told that we had opt-outs, but the problem is that they do not always work. We were told that about the social chapter, but we were overruled by the European Court of Justice on the working time directive. We were told then, “Europe is changing”, and, “It’s all going our way.” I cannot believe I have heard it again, but the Foreign Secretary actually said today:

“National where possible, Europe where necessary.”

John Major regarded that—subsidiarity—as his principal triumph, which was going to reverse the centralising tendencies of the European Court of Justice. We were told we would always be leading in Europe. Today, the Foreign Secretary said we would “fight” with “like-minded…states” and be

“leading…in a reformed EU”.

We have heard all this before—these are the same deceits—to persuade people to support something that we do not really want. We were told that if we vetoed Maastricht, it would be a “leap in the dark”. What did the Foreign Secretary say today? He said leaving would be a “leap in the dark”. The giveaway this afternoon was when he said:

“Of course there is more to do”.

You bet! If we stay in the European Union, there is going to be a lot more to do, because this agreement is of course so inconsequential, even if it were irreversible and legally binding.

What happens if we vote to remain? That is the question the Government need to answer. What will happen? Last time, we were told before the referendum that there would be

“no loss of essential national sovereignty”.

The word “essential” was useful, because it denuded that phrase of its meaning. We have the same weasel words coming from the Law Officers today.

If the British people are deceived again and we vote to remain, we will have resolved nothing. We will be back in the Chamber in five or seven years’ time either to demand another referendum or deciding just to get out. That is the trend: we will be facing the same problems and we will be afflicted by the same conflicts with our European partners, although by then the problems will be worse. I believe that leaving the European Union is the safer choice. Our security depends on NATO and our alliances, our own people and our resources, and working with allies. The idea that we can work with allies only if we stay in the European Union is yet another deceit being visited on the British people.

Parliamentary Sovereignty and EU Renegotiations

Debate between Bernard Jenkin and William Cash

Thursday 4th February 2016 Commons Chamber

[Sir William Cash]

Certainly not at this moment.

I was about to say that Speaker Lenthall, in defiance of prospective tyranny, refused to accept armed aggression by the monarchy. Pym, Hampden, ship money—this was all about sovereignty and defending the rights of the people from unnecessary and oppressive taxation, which was being imposed on them without parliamentary authority. Through subsequent centuries, we saw the repeal of the Corn laws, and parliamentary reform through the 1867 Act to ensure that the working man was entitled to take part in this democracy; and after that, through to the 1930s when we had to take account of the mood of appeasement.

With respect to the Prime Minister and the Minister for Europe, I take the view that in completely different circumstances what has happened in these negotiations in terms of parliamentary sovereignty can be seen when the die is clearly cast and we now have an opportunity for the first time since 1975 to make a decision on behalf of the British people. That is why we need to have regard to the massive failures of the European Union and to its dysfunctionality—whether it be in respect of economics, immigration, defence or a range of matters that are absolutely essential to our sovereignty.

All those issues have, within the framework of the European Union, been made subject to criticism. We are told that we would be more secure if we stayed in the European Union and that we would preserve the sovereignty of our electors who put us in place to make the decisions and make the laws that should govern them. Would we really be more secure in a completely dysfunctional, insecure, unstable Europe? No, of course not.

The issues now before us in Europe are actually to do with sovereignty. If we lose this sovereignty, we betray the people. That is the point I am making. Yes, there are certain advantages to co-operation and trade, for example, and I agree 100% with that. I have always argued for that, but what I will not argue for is for the people who vote us to this Chamber of this Parliament to be subordinated so that we are put in the second tier of a two-tier Europe, which will be largely governed, as I have said previously, by the dominant country in the eurozone—Germany.

[Mr Jenkin]

Does my hon. Friend agree that one of the most worrying sentences in the document published this week relates to what will occur if the eurozone seeks to deepen its integration? This sentence reads:

“member states whose currency is not the euro shall not impede the implementation of legal acts directly linked to the functioning of the euro area and shall refrain from measures which could jeopardise the attainment of the objectives of the economic and monetary union.”

Given that there is going to be a new treaty and we do not know how it is going to affect us, is this not in effect giving up our veto?

[Sir William Cash]

It is. We were promised that in 1972. Our membership of the European Union is entirely dependent on the same Act that was passed in 1972. It was a voluntary decision based on certain assumptions. The 1971 White Paper, which preceded that debate, said that we would never give up the veto, and went on to say that to do so would be against our vital national interests and would endanger the very fabric of the European Community itself. They knew which way it could go. They knew they had to keep the veto, but it has been taken away from us progressively by successive Governments. If we cut through all the appearances, this is a sham. That is the problem and this is the real issue.

European Union Referendum Bill

Debate between Bernard Jenkin and William Cash

Tuesday 8th December 2015 Commons Chamber

[Sir William Cash]

My hon. Friend should bear in mind that the White Paper that led to the European Communities Act 1972, which went through by only six votes in this House, contained a very precise promise that the use of the veto in our national interest would never be abandoned, because to abandon it would be to endanger the very fabric of the European Community itself. Is that not an example of how unreliable White Papers and other Government reports can be?

[Mr Jenkin]

Indeed, but it is unavoidable that the Government are going to produce information of this kind.

The second duty, in Lords amendment 6, is not something that I expected to see. The Lords amendment asks the Government to produce judgments and opinions on a vast topic, using examples that, by their very nature, will be subjective. I am not at all surprised that the Electoral Commission has decided that it would be far beyond its competence to make a judgment about what such a document might be. The Government have accepted this amendment, but if they are to justify retaining it—as I expect them to do—they will have to answer some questions about it.

What do the Government mean by the word “publish” in the amendment? It would be one thing to place a learned, detailed and technical paper in the Library of the House of Commons in order to present the depth of analysis that the hon. Member for Glenrothes believes would be justified, but would the Government produce such a subjective document in a form that could be circulated to every household? How would we feel about that, 10 weeks before a referendum? It is reasonable for the Government to explain the outcome of their negotiations, but it would not be reasonable for them to use public money to present their entire world view on European Union membership as part of a campaign to remain in the EU.

--- Later in debate ---

[Mr Jenkin]

I am waiting to hear what the Minister has to say on that point. The proposed amendment changes the wording. It now says that it should be allowed to make that decision only if

“no permitted participant makes an application to be designated under section 109 as representing those campaigning for that outcome except for a permitted participant whose application the Commission states is, in its opinion, vexatious or frivolous.”

That would mean that, provided there are two legitimate applications for designation, the obligation would be clear in the Bill that the commission has to designate two campaigns. That is not clear in the Bill at the moment. If one such campaign was “vexatious or frivolous” and was clearly just there to spoil in some respects, the Electoral Commission would have to justify its action. I hope the Minister will tell us that he can accept our amendment. If he cannot do so, I hope that he will make it clear that the substance of the amendment should be understood, and that it would be unconscionable to have only one campaign designated in this referendum. If an application is made in such a way as to be construed as vexatious or frivolous, such an application would have to be considered. We should be in no doubt that there will be an application in respect of both sides of this campaign.

[Sir William Cash]

I endorse what my hon. Friend has just said. Let me repeat for the sake of clarity that these amendments are the result of ping-pong between the Commons and the Lords, which is not the best way for them to be considered. We have not had enough time to have a really good look at this matter, and I hope that the Minister will take that into account when he gives us the very full explanation on amendments 5, 6 and 13.

[Mr Jenkin]

In closing, let me add that in all three amendments we have been discussing the potential role of the Electoral Commission. In respect of amendments 5 and 6, the Electoral Commission has shrunk from the possibility of being given an obligation for which it is not fit. It is worth reminding ourselves that we have already developed one new role for the commission during the passage of this Bill, which is that it will give its advice about possible new regulations on the restriction of section 125 of the Political Parties, Elections and Referendums Act 2000 in respect of purdah. It did not want that obligation, but we gave it to it. Electoral commissions in countries such as Ireland or Denmark have a very much more active policing role in respect of fair referendums, and that is a role that we, in this country, have not set up the Electoral Commission to undertake.

[Sir William Cash]

With both amendments 5 and 6, we need to bear in mind that a duty would be imposed. That duty would imply and carry with it the potential for judicial review. If there were any failure in carrying out that duty in the manner that was expected under all the precepts of administrative law, the Minister should accept that there is more than a high probability of a challenge in the courts. That challenge could arise not only because of the manner in which a report arose, but if any of the information were misleading in any way.

[Mr Jenkin]

I agree with my hon. Friend, and will add that, where the Electoral Commission clearly has a duty, its decision can be judiciously reviewed. In respect of the designation of only one campaign, I have absolutely no doubt that there would instantly be a judicial review, and I speak with knowledge aforethought.

In the absence of the duties on the Electoral Commission —for example, to provide for impartial and objective information from the Government—it is a moral imperative on Ministers to ensure that they undertake their obligations in the spirit of a fair referendum, and not to abuse the trust that this legislation places on them with regard to the publication of that information.

Finance Bill

Debate between Bernard Jenkin and William Cash

Monday 26th October 2015 Commons Chamber

[Sir William Cash]

Surely what this really boils down to is that the European institutions intend to—and actually do—tax women on these products in order to get the money to run the very system that is discriminatory.

[Mr Jenkin]

Our problem with the EU’s VAT directives is that they are a one-way street. Once the EU has adopted powers to regulate a particular tax, that power cannot be taken back by the member states. We are then left begging the EU as to whether we can set the tax rates for which the British people vote, as opposed to setting them ourselves. It strikes me as ironic that the Scottish National party wants independence from the United Kingdom in order to do its own thing, but it is happy to go on giving up more and more power to the European Union, so it will have even less freedom and less voice than it has in the UK.

The problem is that once VAT rates on any product are set above 5%, the European Union does not allow any member state to reduce them to below 5% again. We therefore have an anomaly whereby there is a zero VAT rate on sanitary products in the Republic of Ireland because it has never charged VAT on them. Had we started from the principle of charging no VAT on sanitary products, we would be in the same position as Ireland, but because we already charged it we cannot take it away. What a mess.

European Union Referendum Bill

Debate between Bernard Jenkin and William Cash

Monday 7th September 2015 Commons Chamber

[Mr Jenkin]

That is absolute nonsense. Even in a general election, Ministers can get advice from their Departments. Ministers also take advice during local government elections. If something happens that is unconnected with the referendum, Ministers will be able to take advice. I have heard it said that Ministers want to use their private offices to organise their speaking tours and to use their special advisers, who are paid for by the taxpayer, to campaign in the referendum. That is not an acceptable use of public money. What is the point of placing spending limits on the yes and no campaigns if the Government are going to avail themselves of all those advantages? My right hon. and learned Friend could persuade the Government to produce a White Paper to set out their case well in advance of the purdah period. That is an unimpeded advantage of which the Government can avail themselves. All we are saying is that there should be something of a level playing field in the last 28 days.

I regret that the Opposition accept new clause 10; nevertheless I am grateful that they support amendment (a) in order to create a framework for the creation of regulations. I am very unhappy with amendment 53. As the Opposition spokesman, the right hon. Member for Wolverhampton South East (Mr McFadden), made plain, to have amendment 53—which already adulterates section 125—without the scrutiny process of regulations and a specific debate about what Ministers actually want to exempt is a shot from a double-barreled shotgun against section 125 of the Political Parties, Elections and Referendums Act 2000. If the Government want to provide exemptions, they should introduce the amendments under regulations rather than under amendment 53.

The advantage of defeating amendment 53 is that we will be able to have amendment 4 instead. It was the unanimous view of the Public Administration and Constitutional Affairs Committee that section 125 and its effect on this referendum should be restored unimpeded. That would be the effect of amendment 4, but there may be some tidying up to do.

[Sir William Cash]

Does my hon. Friend accept that, while we may end up voting for amendment 4, amendment 78 is better, simply because it deals with the problems of the devolved territories? As I put it to the Opposition’s Front-Bench spokesman, the right hon. Member for Wolverhampton South East (Mr McFadden), even if we end up with amendment 4, the consequence will be that we will still be thrown back by new clause 10, which will leave it all to regulations. As far as I am concerned, that is highly unsatisfactory.

European Union Referendum Bill

Debate between Bernard Jenkin and William Cash

Tuesday 16th June 2015 Commons Chamber

[Sir William Cash]

I completely agree with my right hon. Friend.

[Mr Jenkin]

The Government argue—I think we have to accept their argument—that these detailed and broad restrictions are too prescriptive and that they would not be able to carry on with the normal course of government, as my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) has explained. Does my hon. Friend not agree that there would be too much interference in the normal conduct of government?

[Sir William Cash]

I just do not think that makes sense. The bottom line is that we are now so invading the ability of the voters in the referendum to make a free and fair choice, by canting the process and taking all the things to which I have just referred out of the equation, that we could seriously undermine the whole democratic process with respect to referendums. This is simply not a tenable position. If it was good enough for the Scottish and the Welsh, why is it not good enough for the referendum on the EU, which will go even further towards infringing—as we would put it—the role of this Parliament and our democratic freedoms?

I also want to discuss what publishing means. Section 125 of the 2000 Act is very general on this point, and this is what hon. Members are being asked to repeal this afternoon. It states:

“‘publish’ means make available to the public at large, or any section of the public, in whatever form and by whatever means”,

and the relevant period

“means the period of 28 days ending with the date of the poll.”

There are profound reasons for maintaining the status quo at this stage and for retaining the restriction, because once it has been repealed, we would then have to reinvent the wheel, as it were, on Report. That could open a huge can of worms for the Government. The question is: what would the Government not be restrained from doing, compared with some of the things that it is currently stated they would be restrained from doing?

The Minister for Europe has sent us a letter today, 16 June, in which he says:

“It is our clear intention, through the Bill, to provide a straightforward, fair and effective framework for the referendum.”

I have to say to him that I must cast some doubt on that in relation to the questions that are being raised. He goes on to say that it would be “inappropriate” to

“prevent Ministers from effectively conducting the significant amounts of ordinary day-to-day business between the Government and the EU that will necessarily continue during the pre-poll period.”

I have been Chairman of the European Scrutiny Committee for five years, and I just do not recognise this at all. There are things that go on in the monumental amount of material that comes in from the European Union, but in my judgment there is no suggestion that anything of this nature would be affected by retaining section 125. The section was applied during the Scottish referendum, which had a European dimension. The same applied to the Welsh Assembly. If it was all right for Ministers to continue to make statements in those circumstances, we should keep section 125 and do as the Foreign Secretary suggested during the Second Reading debate. The Minister for Europe’s letter states:

“The Foreign Secretary said during the debate that the Government will exercise proper restraint to ensure a balanced debate during the campaign.”

This is the moment to ensure that we get this right by keeping the restriction for the time being, having discussions and coming back with specific proposals on Report, on which we can then vote.

I acknowledge that the Minister for Europe has conceded that we have more than a reasonable case. His letter goes on:

“Working out a system that will reassure colleagues and voters that the referendum is a fair fight, yet will preserve the Government’s ability to act in the national interest is not straightforward.”

Well, it would be very straightforward if we kept section 125. He adds:

“It is important that it is legally clear and robust.”

It would make things very unclear and very unrobust if we were to remove the provisions in section 125, which are based on common sense and fairness and on giving voters a proper opportunity to make a fair choice.

--- Later in debate ---

[Sir William Cash]

I do beg my hon. Friend’s pardon. He was a Whip a short time ago, but he has now been promoted, on which I congratulate him. I hope he will pass back the message that we really must have a substantive response to this question.

Furthermore, the amendment will extend the minimum referendum period to 16 weeks, thus providing for a minimum 10-week post-appointment period. I am glad to say that the Electoral Commission supports my amendment; indeed, it supports the majority of my amendments. It says that extending the period to 16 weeks

“would go some way to giving designated lead campaign groups the time needed to get their messages to voters, including to plan and effectively use free mailing and TV broadcasts.”

As a matter of fairness—that hallowed expression—I cannot think of anything more important.

[Mr Jenkin]

I commend my hon. Friend’s amendment, to which I have added my name, but does that not presuppose that the Government will conclude the negotiations and report them to the House well before the 16-week period kicks in, and that it is not legitimate for them then to use the Government’s machinery to explain the deal that they have reached through the purdah period and the 16-week period up to polling day? Does that not suggest that the Government will try to pull a fast one? Would it not be better if they made it clear now that they are going to conclude the deal long before the referendum is called so that there can be a proper and dispassionate debate about it?

[Sir William Cash]

I very much agree with my hon. Friend and I will go further and say that in the period between now and Report there will be substantial issues of this kind that we will need to dig into. There are references to counsel’s opinion on the purdah period and views that have been expressed by the Electoral Commission. We had a Bill before us without our having any idea of the outcome of the negotiations. This is not a satisfactory way to proceed.

As one who spent 25 years in very senior practice as a constitutional and administrative lawyer dealing with matters such as the dispute between Canada and Quebec, I can only say that counsel’s opinion is not the basis on which to make political decisions. We as lawyers may be very good at coming up with legal answers, but when I get my hands on that counsel’s opinion, as eventually we did on the Iraq opinion, there will be quite a lot of question marks. As my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) said in an earlier intervention, the Government can take their counsel’s opinion; we will take ours.

That is the position on that important amendment. The Electoral Commission supports the principle behind it. Will the Minister be good enough to give us a substantive reply and support amendment 9? I might not hold my breath about that.

The other amendment in my name, amendment 10—again, I am grateful for the support of hon. Members who have signed it—would ensure that no funds or support provided directly or indirectly by European Union bodies have a bearing on the outcome of the referendum. Is there any conceivable basis on which the Committee of the whole House would think a proper and fair referendum could be conducted if the entire resources of the European Commission and the European Union can be deployed in order to support a yes vote in the United Kingdom? By the way, there is no chance whatever that those bodies will not use all that money. They may have problems with Greece and they do not want a Grexit, but that pales into insignificance.

This is a very important proposal. The Electoral Commission takes the view that it already has controls on direct and indirect sources of campaign funding. Before I come to that, I refer to the situation as it applied in Ireland. I have spoken, debated and been at mass meetings when campaigners have been good enough to invite me in the run-up to referendums in France, Ireland, Denmark—all over Europe. There one sees the power of the state, pouring money down the throats of voters, and the machinery that underpins the yes campaign. I have come across some figures suggesting that in the second Irish referendum the amount of money deployed by the yes campaign after the machinery was geared up was around 15 times the amount available to the no campaign. That shows the scale of the problem.

--- Later in debate ---

[Sir William Cash]

The hon. Gentleman is seeking to draw me down that path, but I have been in this place for 31 years and will not buy that one. I am very glad that we got the vote we did last September, but that does not prevent me from being critical of the manner in which the procedures were followed.

I want to say something else. We have mentioned Mr Barroso. Here we are in the Westminster Parliament, described as the mother of Parliaments, and yesterday the celebrations for the Magna Carta were seen all over the world. The fact is that the traditions of those two things are illuminated around the world. We have fought in two world wars, against unprovoked aggression, and through our Parliament—through Churchill in this Parliament—we managed to save not just the United Kingdom, but Europe. They managed to drop a bomb on this place on my first birthday. Indeed, on the day I was born Hitler invaded Holland and France and Churchill became Prime Minister, but that is another story. The fact is that we have played a massive part in relation to democracy. What really worries me is that allowing the European Union to use its financial resources to manipulate the system is very dangerous.

According to the Electoral Commission, a central principle of its regulatory regime is to ensure—this is important—

“that foreign sources of funding do not have an undue influence on our democratic process.”

As hon. Members know, I have an eagle eye for the danger points. The Electoral Commission states that the 2000 Act, which sets out that regulatory regime,

“already provides that referendum campaigners are only able to accept donations over £500 from certain ‘permissible’ sources. In general, the permissibility rules provide that funding can only be accepted by referendum campaigners from certain UK-based sources. There are also rules and offences related to using permissible donors as agents to circumvent the rules.”

The Electoral Commission therefore put in place its regulatory arrangements. What it goes on to say is extremely important, and I still believe that my amendment would achieve this, because it uses the words “directly” and “indirectly” when talking about moneys, resources or support from any source within the European Union. The Electoral Commission states:

“It is important that the legislation is clear about those organisations that can and cannot participate in the referendum. The Commission’s view—

wait for it—

is that the European Commission does not fall within the list of bodies that can register as a campaigner or donate to other referendum campaigners. This amendment is therefore unnecessary.”

However, the analysis that I have provided shows the reach of the tentacles of the European Union, driven by Mr Barroso and his successors—Mr Juncker and all the others. We must never forget that Mr Barroso has said that the European Parliament, and only the European Parliament, is the Parliament for the European Union. He and his successors do not believe in this Parliament. There is a lot of talk now about national Parliaments, but his comments are on the record.

The Electoral Commission’s view is that the European Commission does not fall within the list of bodies that can register as campaigners. We should look into that carefully, because if the Electoral Commission were wrong, the European Commission might manage to worm its way in, on the scale that it has at its disposal, and subsidise the yes vote. I understand that that happened in Ireland, not to mention other countries throughout the European Union.

The Prime Minister has said that we can find an answer to the problems inherent in the purdah question. The Government acknowledge that there are problems with section 125 of the 2000 Act, but they say that they will get around them. That would include dealing with the civil service, but we must remember that the civil service includes permanent representatives. Members who are new to the House may not know about COREPER, the Committee of Permanent Representatives, which is the most powerful body in the European Union bar none, because it stitches up deals between all the member states. As Chairman of the European Scrutiny Committee, I took evidence from our chief representative on that body. I emphasise to the Committee that the evaporation of section 125, combined with the monetary intrusion of the European Union, represents a monumental challenge to our democratic system.

[Mr Jenkin]

My hon. Friend is explaining coherently how even though the European Commission does not consider itself to be a permitted participant or a permitted donor in a UK referendum campaign, its ability to fund bodies that will be participants or campaigners is unlimited. What about the Brussels-backed CBI, which has already received funds from the European Union, presumably to promote the EU? What is to prevent the CBI from receiving further funds? What restrictions will the Bill place on the CBI’s ability to receive such funds if it wants to donate to other campaigns?

[Sir William Cash]

This is vital territory. In a nutshell, we will have to get it right. Opening the floodgates on that money would be devastating, especially if it were to be employed alongside the lifting of the restrictions in section 125, which would bring the whole panoply of the civil service into play. That would be a nightmare scenario, but it is a genuine possibility. I am not convinced that the European Union is not a foreign source, although I will look into that. We passed an Act of Parliament, the European Communities Act 1972, under which we absorbed into our legislation all the treaties and all the functions of the bodies in the European Union. Because they became part of our constitutional settlement—for the time being, I trust—I believe that it would be an uncertain, if not a dangerous, assumption to make that the European Union and the European Commission would not be construed as being based in the United Kingdom as well as in all the other EU countries, in other words, as not being a foreign source. This matter will have to be looked at very carefully. I shall consult and confer with my colleagues as to what we do about these amendments.

European Union Referendum Bill

Debate between Bernard Jenkin and William Cash

Tuesday 9th June 2015 Commons Chamber

[Sir William Cash]

I entirely agree. The European Scrutiny Committee was unanimous in its report, which was severely critical of the BBC’s failure to be sufficiently impartial in relation to European matters. There will be further discussion of that issue as we continue to debate the Bill.

At the 1922 committee meeting, I made it clear that we would engage not in wilful opposition but in a process of mutual respect and debate. In plain English, what the Prime Minister said on 23 March boils down to the following. He said that he wanted to change the basic principles by which the United Kingdom is connected to the European Union. He carefully distinguished between “fundamental change” in our relationship and mere reform of it. Reform may include some treaty change to include issues relating to benefits and so forth, but they pale into insignificance by comparison with the Prime Minister’s own assertion that he wants “fundamental change” in our relationship with the EU.

In its report on referendums, the House of Lords Constitution Committee made it clear that a referendum would be primarily necessary in the event of a proposition that we leave the European Union, as opposed to mere nibbling at the treaties. I have said repeatedly for years that if we do not achieve this fundamental change, we will have to leave the European Union. That becomes essential if we are to govern ourselves in line with the wishes of the voters in general elections. In his Bloomberg speech, the Prime Minister said:

“It is national parliaments which are, and will remain, the true source of real democratic legitimacy and accountability in the EU.”

Nothing is more important than that when it comes to the government of our country and its freedom.

Other member states may seek to block this action, but they do so at their own peril. They need us politically and economically, and they repeatedly say that they want us to remain in the EU; but then the handouts, the bail-outs, the subsidies and the ideology of political union get in the way. We have positive alternatives to the European Union. Our democracy and our national Parliament are what people fought and died for in two world wars, and it was through their sacrifice that we saved Europe in those two wars. It is not in the interests of Germany, Europe or ourselves for us to remain in the second tier of a two-tier Europe dominated and profoundly affected by a de facto eurozone, which is in reality at the epicentre of the legal framework of the European Union itself, in which we have been embedded by successive treaties and which does not work.

[Mr Jenkin]

That is the most fundamental point that must be addressed by those who want us to remain in the EU on the present terms. For 20 or 30 years we have had a dysfunctional relationship with the European Union because we do not want to be in political or monetary union, and do not want to be absorbed into something that looks more and more like a state. If those people cannot answer the question how we can be at the heart of this Union on a completely different basis, we will indeed end up as a second-tier member state of an increasingly centralised European Union.

[Sir William Cash]

My hon. Friend is absolutely right.

Removing the words “ever-closer union”—which have never been specifically adjudicated on by the European Court of Justice, and merely form part of the preamble to the treaties—will not solve the problem. It does not change the legal obligations of the accumulated treaties, from Maastricht to Lisbon. Notwithstanding their protestations, it will not be the establishment, the EU, the BBC or the self-appointed multinationals with vested interests who will decide these matters. None of those multinationals has advanced a rational argument to support their determination to stay in the EU. That is my response to what was said by my right hon. and learned Friend the Member for Rushcliffe, who asked the same question of us from the other side of the argument. They were hopelessly wrong about the euro, and have been hopelessly wrong about so many aspects of European debate.

It is the voters who will give their verdict by the end of 2017. It is the voters, and the voters alone, who will decide it, not the massed ranks of the Europhiles. The rolling back of the treaties is imperative to our national interest. Indeed, the 1971 White Paper, on which the European Communities Act 1972 is still founded, clearly stated that we must keep the veto precisely because it was in our national interest to do so. It went on to say that to do otherwise would

“imperil the very fabric of the Community.”

I look at my right hon. and learned Member for Rushcliffe because he knows that he supported that at the time, in 1971.

The UK’s Justice and Home Affairs Opt-outs

Debate between Bernard Jenkin and William Cash

Thursday 10th July 2014 Commons Chamber

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

I am grateful to have the opportunity to follow my right hon. Friend the Member for Banbury (Sir Tony Baldry). The burden of his case appears to be that the efficacy of any extradition arrangements should override any other balanced argument about what might be affected by them. He demonstrates how easy it is to be seduced by expediency, convenience, efficiency and pressure from the police, who have only one objective, and that is not to create more of the stronger human rights or protections for citizens that they feel obstruct their task of maintaining law and order. That is why this House does not abdicate decisions on matters of constitutional importance or human rights to ACPO.

The Abu Hamza case took so long because we had lost control of our law and because we no longer control the human rights jurisprudence in our courts. The lesson of that case is precisely the opposite of what my right hon. Friend suggests. We should take control of our own laws by enacting laws from this place rather than abdicating authority to other places, least of all to foreign powers.

I was struck in this debate by how my right hon. Friend wanted to caricature the objections to the provisions, saying that anybody who is obsessed with the issue of Europe will stand up and object to anything. I am a trustee of the Parliament choir and last night we sang alongside our German counterparts, the Bundestag choir, in Westminster Hall. I stood shoulder to shoulder with a fellow bass from Germany and that is the kind of unity, brotherhood and friendship with our European partners that we want to demonstrate. It should be possible to discuss the practical arrangements we have with each other without being impugned as some kind of right-wing xenophobe, but I am afraid that my right hon. Friend fell into that trap.

Another striking point about this debate is that although the Chairman of the Home Affairs Committee, the right hon. Member for Leicester East (Keith Vaz), the former Chairman of the European Scrutiny Committee, the hon. Member for Linlithgow and East Falkirk (Michael Connarty), and the Chairman of the Justice Committee, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), each expressed support in principle, they were a great deal more chary about the consequences and effects of signing up to these arrangements than either of the Front-Bench speakers.

I take on board what my right hon. Friend the Home Secretary said about the additional protections that she thinks she has obtained for the exercise of the European arrest warrant, whereby we now have domestic legislation in place to deal with matters of disproportionality and dual criminality. That goes to the heart of the wider context of this debate as to whether we really control the terms of engagement that we are entering into with this instrument and whether this House has any control over the terms of engagement that our law has with our membership of the European Community.

This debate exposes the dislocation between the words of our political leaders and their actions. What we are discussing today feeds the discontent and disillusion that people feel about our politics and politicians and about the UK’s relationship with our EU partners. We have seen across the House the same old cosy consensus between those on both Front Benches that encouraged UKIP to such new heights in the recent European elections.

The very title of the debate, which says that it is a general debate on the UK’s justice and home affairs opt-outs, is misleading. The UK has already exercised our opt-outs from the justice and home affairs provisions under the Lisbon treaty. This debate is about whether the Government should opt back in to 35 of these measures. Unlike what was agreed—it pains me to say this—about these provisions at Lisbon by the previous Government, my right hon. Friend the Home Secretary is proposing a major and permanent transfer of power from the UK to the EU: a transfer of more sovereignty which, nevertheless, escapes a referendum under the European Union Act. This is yet another example of politicians seeking to provide reassurance to voters without actually meaning it. The transfer includes a permanent commitment to the notorious European arrest warrant, which is intended to remove the recourse of a citizen of the UK to the courts in the event of such a warrant, whatever UK legislation is place, with the new provisions themselves vulnerable to being overridden by the European Court of Justice.

The idea that any extradition arrangement we enter into with other EU states would necessarily be subject to the jurisdiction of the European Court of Justice is, in itself, an admission of how overreaching the European treaties have become. There are still parts of our law that are immune from the reach of the European Court of Justice. It should be possible to reach an agreement with the European Union that the European Court of Justice will not arbitrate in disputes between the United Kingdom courts and the European courts in such matters. The fact that there is an assumption that the European Court of Justice will preside over any dispute between the United Kingdom and the EU on any matter demonstrates how overarching the reach of the Court under these treaties already is. That goes to the heart of what we are tangentially discussing, which is the future of the UK’s relationship with our European partners.

[Sir William Cash]

I agree with everything my hon. Friend is saying. In the United Kingdom, as compared with all the other 27 member states, we are in a unique position. Our European Communities Act is a voluntary Act. We do not have a written constitution. We are able to make the changes that are necessary to regain our sovereignty. When the Prime Minister says that our national Parliaments are the root of our democracy, he knows, and so do the Government, that we still retain the right to be able to make the changes in order to extract ourselves from situations that we regard as not being in our national interest.

[Mr Jenkin]

I agree with the Prime Minister and with my hon. Friend on that point.

The Prime Minister recently told the “Today” programme that he wants to pursue a relationship with our European partners based on “trade and co-operation” and on being “an independent nation state”. I have to say that I cannot find any strand of consistency between the measures in this Command Paper and the aspirations expressed by my right hon. Friend the Prime Minister.

May I remind my right hon. Friend the Home Secretary, who is not in her place at the moment, of what we said in the House about the European arrest warrant when we were in opposition? My right hon. Friend the Justice Secretary, as shadow Home Secretary, said in 2009 that it “undermined civil liberties”. My right hon. and learned Friend the Attorney-General, as shadow Justice Secretary, said in 2008 that

“once such things are subject to the European Court of Justice and the Commission…the Government will lose all control over standing up for United Kingdom interests in these areas”.—[Official Report, 29 January 2008; Vol. 471, c. 176.]

He also pointed out that the European arrest warrant

“is very different from…an international treaty obligation that the United Kingdom could decide not to follow if it infringed the human rights of those affected. We will be surrendering the final say about that entirely to a supranational body.”—[Official Report, 29 January 2008; Vol. 471, c. 175.]

The Foreign Secretary, as shadow Foreign Secretary, chided the previous Government for not keeping their promises on the EU when he said:

“Time and again they have made promises that they would not hand over powers to Europe, particularly on justice and home affairs, and time and again they have done exactly that, not least through the treaty.”—[Official Report, 4 March 2008; Vol. 472, c. 1684.]

My right hon. Friend now has to eat those words.

The Conservative party manifesto of 2010 promised

“three specific guarantees—on the Charter of fundamental rights, on criminal justice, and on social and employment legislation—with our European partners to return powers that we believe should reside with the UK, not the EU.”

Why have we abandoned that? It was based on a speech the Prime Minister made when in opposition, in which he promised to negotiate the three guarantees, one of which was

“limiting the European Court of Justice’s jurisdiction over criminal law to its pre-Lisbon level, and ensuring that only British authorities can initiate criminal investigations in Britain.”

Why have we abandoned that?

Much more recently, the Prime Minister wrote in The Sunday Telegraph on 16 March 2014 that one of the key changes he would seek in a renegotiation with the EU was:

“Our police forces and justice systems able to protect British citizens, unencumbered by unnecessary interference from the European institutions”.

Why have we abandoned that already? What did he intend to convey to voters in advance of the European elections? Surely not that he intended to do exactly the opposite a few weeks after the close of poll.

This year’s Conservative European election leaflet stated:

“We stand for a new relationship with the EU, bringing power back to Britain and away from Brussels”,

by, among other things,

“taking back control of justice and home affairs”.

If the UK intends to bring powers back in our renegotiation after the next election, it is a strange way for the Prime Minister to begin setting out his stall by giving up the very powers he said he would not give up.

That raises the question about the pressure on Ministers to continue supporting the process of EU integration because of coalition politics. My right hon. Friend the Home Secretary’s blank denial that there could be any alternative to the European arrest warrant underlines that she may well have fallen prey to such pressures. Notwithstanding the fact that the main party in power has a different policy and was elected having opposed Nice, Amsterdam and Lisbon, Whitehall appears to be continuing to implement those treaties according to a policy of business as usual. More powers are being transferred from the UK to the EU, with EU legislation encroaching ever more on our justice system, as though there had been no change of Government.

I do not doubt that my right hon. Friend the Home Secretary is acting on advice and with complete integrity, but it may help if I, as Chairman of the Public Administration Committee, remind the House how advice to Ministers works in a coalition. The civil service is enjoined to serve the Government as a whole, not individual party agendas or the different agendas of individual Ministers. It comes as no surprise, therefore, that no serious consideration has been given to any alternative policy of negotiating a permanent bilateral agreement on these matters, like the 170 or so sovereign states that are not members of the EU.

If my right hon. Friend the Home Secretary had been minded to ask for credible submissions to support such a policy and then to act on them, it is not only the status quo in her Department, the Foreign Office and elsewhere that she would have had to fight. She would certainly have had the support of the Conservatives in that—if we were a majority Government, I doubt she would have had the support to act in the way she is acting now—but in this coalition, the quad would have vetoed that policy. It is, therefore, hardly surprising, four years since her appointment, that little work has been done on any alternative policy.

European Scrutiny Committee Report

Debate between Bernard Jenkin and William Cash

Thursday 28th November 2013 Commons Chamber

[Mr Cash]

I would be extremely interested to know why they would not be interested in supporting the Committee’s proposals, particularly the basis on which they are derived, which is that we are putting our national Parliament at the heart of the process, because that is the basis on which Members of this House are elected by the people we have the honour of representing.

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

It is remarkable that this is a unanimous report. Indeed, it is supported by the hon. Member for Linlithgow and East Falkirk (Michael Connarty), the previous Chairman of the Committee. It comes up with a radical but soundly based proposal

“whereby the House of Commons can decide that a particular EU legislative proposal should not apply to the United Kingdom”

even it is voted through by the Council of Ministers under qualified majority voting. It also suggests that

“parallel provision…to disapply…the acquis”

communautaire should be made available to the House of Commons. That is based on Professor Damian Chalmers’ analysis regarding the creation of a form of unilateral red card of national Parliaments that is, in turn, based on the EU treaties themselves, which

“shall respect the essential State functions”

of member states. I commend the report and congratulate my hon. Friend on it. He highlights something of a scandal in this House in that we do not scrutinise European legislation in this way already.

--- Later in debate ---

[Mr Cash]

I am grateful to my hon. Friend. There was a time when membership of these Committees was permanent, which meant that they had people who really knew and understood the context in which these matters were being debated. They were not just shoved on them by the Whips at short notice to sit there writing correspondence, or whatever; they took an enormously coherent interest in those matters. The idea of having permanent Chairs and permanent members of the Committee, in parallel with the arrangements for specialist MP rapporteurs—or reporters, as we call them—to serve on the departmental Select Committees, is to create an integrated approach so that the whole House is properly informed at every policy level and can therefore ask the right questions of departmental Ministers on the Floor of the House and in public Committee sittings.

[Mr Jenkin]

At the risk of testing the patience of the House, I note that, as my hon. Friend will be aware, my hon. Friend the Member for Amber Valley (Nigel Mills) has tabled a new clause to the Immigration Bill that touches on these matters in relation to the lifting of restrictions on Romanian and Bulgarian immigrants coming into this country under the EU free movement of people provisions. Is it appropriate on this occasion for me to draw my hon. Friend the Member for Stone (Mr Cash) into any thoughts about how these principles might apply to a new clause to the Bill that would be effective in upholding the sovereignty of this House?

[Mr Cash]

rose—

European Union (Referendum) Bill

Debate between Bernard Jenkin and William Cash

Friday 8th November 2013 Commons Chamber

[Mr William Cash (Stone) (Con)]

rose—

[Mr Jenkin]

rose—

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Debate between Bernard Jenkin and William Cash

Tuesday 8th October 2013 Commons Chamber

[Mr Jenkin]

I will return to that matter, but when my right hon. Friend employs the word “privilege” in that context, he is not employing it in terms of parliamentary privilege. It is not a parliamentary privilege that protects our ability to write to Ministers on behalf of our constituents. That is not covered by parliamentary privilege.

With the indulgence of the House, I wonder whether I might quote the Lord Chief Justice when he made it clear that we should, if possible, avoid legislating on matters regarding privilege. He said:

“Parliament has to decide whether it has sufficient privilege to be able to conduct its business in the way that Parliament wishes. If you have reservations about that, you have to produce a system that enables you to have the conditions under which you can perform your responsibilities properly. If you had no real reservations about it, I would not go down the legislative route that defined, semi-defined, subdivided, allowed for, or exercised this and that, because you would end up in interminable discussions, and, in court, interminable arguments, about what that really meant. Unless you are dissatisfied with the way in which your privileges operate, I would leave this well alone.”

By that, I think he means that the courts are predisposed to defer to proceedings in Parliament, whatever statutes may say.

The 1689 Bill of Rights is one of those special statutes in our legal system that is implicitly present in every statute. We do not need to repeat what is in the Bill of Rights 1689 in every statute in order to immunise it for the purpose of parliamentary privilege. The one exception that we have made is in respect of the IPSA legislation—the Parliamentary Standards Act 2009—in which we inserted the words that I am proposing in my new clause:

“Nothing in this Act shall be construed by any court in the United Kingdom as affecting Article IX of the Bill of Rights 1689.”

I submit that the House of Lords put that clause in the Parliamentary Standards Bill in rather extreme circumstances. When that Bill arrived in this House, it seemed that it was going to go into areas that were previously considered part of the exclusive cognisance of this House. It was going to refer to disciplining Members for what we did in this House, and that was going to draw parliamentary proceedings into the consideration of the courts in a way that was unprecedented. All that was eventually taken out by the House of Lords. In those exceptional circumstances, when the courts were under enormous public pressure to take more draconian action following the expenses fiasco, it was reasonable for Parliament to put that clause into that Bill, but generally we should try to avoid putting any reference to the Bill of Rights 1689 into legislation.

My amendment 1 suggested that we delete paragraph 1 of schedule 1. I note that the Government have now proposed that we remove both paragraph 1 and paragraph 2 of schedule 1. Paragraph 1 removes language which is lifted from the Bill of Rights 1689, without referring to the 1689 Act. Because there is no reference to it, paragraph 1 does not place the wording in the special category in which the Act exists.

[Mr William Cash (Stone) (Con)]

My hon. Friend is reaching the nub of the issue. With something as delicate as article IX of the Bill of Rights, there is nothing worse than trying to produce another version of what it is supposed to mean, which is bound to cause confusion and uncertainty and raise the question of interpretation, making it more likely to be adjudicated by the courts, whereas the Lord Chief Justice said that that should be left well alone.

[Mr Jenkin]

My hon. Friend has, typically, put more pithily than I could a complex legal argument. By drawing the courts into adjudicating on these words, we would be devaluing the 1689 Bill of Rights. That would be irresponsible. If the courts start arguing about all this, we will have to legislate on the matter and risk losing our historic immunity.

Our conclusions, clearly stated in the report, were:

“The extent of Parliament’s exclusive cognisance changes over time, as the work of Parliament evolves”

and it would be impractical

“to draw up an exhaustive list”.

We continued:

“Where there is uncertainty in a case brought before the courts, the extent of Parliament’s exclusive cognisance will be determined by the courts.”

We stated that

“if Parliament were to consider that its privileges had been reduced to the extent that it could no longer effectively perform its core work, it could in the last resort change the law”,

but finally that

“legislation should only be used when absolutely necessary, to resolve uncertainty or in the unlikely event of Parliament’s exclusive cognisance being materially diminished by the courts.”

Neither of those last two conditions exists. There is no uncertainty.

We made further recommendations about how our 1689 privileges could be clarified. It is fashionable to believe that over the years parliamentary privilege has been eroded by the courts. That is a two-way street. In certain circumstances, Parliament might exercise privilege in a manner that has recently been ruled to be subject to court proceedings. It would depend on the circumstances, and we need to hold out the prospect that in extremis we would exercise privilege in a way that the courts might not expect us to do, given the way that privilege has been exercised in the past.

We no longer send out a posse of soldiers to arrest people on behalf of Parliament, and I do not suppose we will return to that in these democratic days, but who knows what will happen in the future? Parliament should reserve its right to assert its privilege in order to be able to conduct its proceedings immune from the courts, immune from the Executive, under any circumstances.

--- Later in debate ---

[Mr Cash]

I am sorry for inhibiting my right hon. Friend the Leader of the House for a short moment.

I just want to endorse what my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) said and draw attention to the real reasons why this matter is so important. I have already made the point that the proposal would simply create confusion and the extreme likelihood that there would be interpretations by the courts as a result of a difference of language between what is contained in schedule 1 and the wording of article 9 of the Bill of Rights. It is best left alone; that was the essence of what the Lord Chief Justice said.

As someone who served on the Joint Committee on Parliamentary Privilege with my hon. Friend the Member for Harwich and North Essex, I want to make something absolutely clear. Curiously enough, the word privilege is almost a misnomer. It is not a privilege; it is a necessity. I would say that of any Member of this House. We cannot have freedom of speech to protect our constituents without having the right to be able to say whatever needs to be said in this House to protect them. That is whether in relation to HS2, on which I share the views of my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan)—I am totally against it—or anything else. The absolute necessity for maintaining the right of an MP to speak within the framework of the rules of the House must not be interfered with by any court or any outside agency. We have to have that right as that is the essence of our democracy.

What we are really discussing here, apart from the very important question—I concede that it is important—of not getting into a conflict with the courts or having differences of emphasis or wording that could give rise to interpretations, is that it is absolutely essential to remember that these issues are for the benefit of our constituents and the national interest.

In 1999 the Joint Committee on Parliamentary Privilege —our predecessor committee—said:

“Parliament makes the law and raises taxes. It is also the place where ministers are called to account by representatives of the whole nation for their decisions and their expenditure of public money. Grievances great and small can be aired regardless of the power or wealth of those criticised.

In order to carry out these public duties”—

I repeat the word “public”—

“without fear or favour, parliament and its members and officers need certain rights and immunities. Parliament needs the right to regulate its own affairs free from intervention by the government or the courts. Members need to be able to speak freely, uninhibited by possible defamation claims.”

The Irish Government argued recently at the European Court of Human Rights that

“parliamentary immunity has developed throughout the world not as a constraint upon the rights of the citizen but as a fundamental liberty.”

I could enlarge on this but I do not need to do so.

[Mr Jenkin]

I am most grateful to my hon. Friend for giving way at this point. He says “around the world”. It is often thought that parliamentary privilege is unique to our rather odd partly written constitution, where the fundamental principles are accepted and not written down. That is not the case. Every parliamentary democracy in the world grants its legislative authority some kind of immunity in order to ensure that it can carry on its function of holding the Executive to account, and legislating and discussing with impunity. It is not unique to us; it exists in America, Australia and elsewhere. They all wrestle with this problem of how to make it work.

[Mr Cash]

That is the very point I am seeking to make. I would also point out that a number of other countries have got themselves into serious turmoil and trouble where the right of the people to speak freely is inessential and incidental to the manner in which their constitution is construed. In many countries, whether dictatorships or quasi-democracies, the inhibitions on the freedom of their members of parliament to speak as they must on behalf of the national interest or on behalf of their constituents is constrained by a lot of activities which, in effect, put them in fear. It is precisely because this House as a whole ensures, through its own regulation of the behaviour of Members, that that freedom is maintained, that we can guarantee that we can serve our constituents in the national interest.

That is all I need to say, Mr Deputy Speaker.

EU-US Trade and Investment Agreement

Debate between Bernard Jenkin and William Cash

Thursday 18th July 2013 Commons Chamber

[Mr Cash]

I am sure that they will do their best, but whether they will do well enough has yet to be established. If we do not know what is going on during the negotiations —and if we do not even know what the mandate is—I must express my concern on that count alone.

I shall continue to quote from the Prime Minister’s letter:

“As David Lidington told your Committee when he appeared before it on 4 July, while the confidential nature of such negotiations means that formally depositing documents is not possible”—

which I have to say concerns me greatly—

“Ministers will keep the Committee abreast of significant developments in writing and we are happy to offer the Committee informal, private briefings on the progress of negotiations.”

We will be monitoring all this. I see that the Chairman of the Business, Innovations and Skills Select Committee, the hon. Member for West Bromwich West (Mr Bailey), is in the Chamber, and I would be happy to exchange ideas and thoughts with him on this. He was a member of the European Scrutiny Committee with me for many years.

[Mr Jenkin]

Does my hon. Friend agree that the challenge will be to reconcile the differing objectives of the member states? That will be extremely difficult because, as a major European economy, we uniquely depend on imports, and we export more to the rest of the world than all the other member states except Germany. At the same time, we are dependent on trade with the EU. We have a unique set of circumstances and a unique economy, and it is going to be extraordinarily difficult to reconcile our requirements with those of the other, very different economies of the EU in one single agreement.

[Mr Cash]

I very much concur with that.

A number of extremely learned articles have been written about this matter, and they show that many European countries stand to be gravely disadvantaged by the deal. I cannot claim that we would be exclusively enhanced by it, but many of the Parliaments and trade associations of many other countries will also be watching these developments. Several countries will be given quite a jolt. An article entitled “Transatlantic free trade: boon or bane for economic cohesion in the EU” states:

“in a broad free trade agreement, trade activities between Great Britain and Sweden as well as between Great Britain and Spain are expected to drop by about 45%. Likewise, Sweden’s imports and exports with Spain and Finland will decline by 40%, and Irish-Dutch trade relations will shrink by 35%.”

All those factors must be taken into account.

However enthusiastic we may be about the concept of free trade, it is important to ask whether the deal is actually to be beneficial to the United Kingdom. It is our task to secure such benefits, and not only that of the EU. We also trade with the whole of the Commonwealth, and our trade relations with the emerging countries, the Commonwealth and the rest of the world have been improving. We have a net surplus of trade with the rest of the world of about £15 billion a year, according to the latest figures for 2012. However, we have a trade deficit with Europe. The figure for 2011 was minus £47 billion; it is now minus £70 billion. The Germans, on the other hand, had a surplus in 2011 of £30 billion, and it is now £72 billion. Many people believe that the United States will benefit the most from the deal, and those figures suggest that it will weigh up all those factors when dealing with these questions. This is a potentially difficult situation that will have to be dealt with.

An article in the Financial Times states:

“There would also be damage around the world from a sweeping US-EU deal. Advanced countries such as Canada, Australia and Japan would suffer, as would many emerging economies. Mexico and Chile, which have strong trading ties with the US, would be among the worst hit, along with most of Africa, Asia and Latin America—with the exception of Brazil.”

Brazil is in a lot of difficulty at the moment, however. The article continues:

“China’s trade flows with the US would shrink”.

There are many elements of all this that need to be thought out.

In the short time left, I shall draw the House’s attention to an article in Economia by Zaki Laïdi, entitled “Europe’s bad trade gamble”. Mr Laïdi is Professor of International Relations at the institute of politics known as Sciences Po in France. I am not saying that he has all the answers, but his article is well worth reading and can be obtained from the Library.

There are many conflicting views of the benefits that could be derived from the deal. The European Scrutiny Committee has made inquiries of the Government, and I would dispute the advantages of the EU-Korea free trade agreement. We know what the position is with regard to the EU, but unfortunately we cannot make any comparison with that arrangement to substantiate the claims of advantages for the UK.

Economic Growth

Debate between Bernard Jenkin and William Cash

Wednesday 15th May 2013 Commons Chamber

[Mr William Cash (Stone) (Con)]

Basically, I regard the whole question of having a referendum as fundamental. I led the Maastricht referendum campaign, and the question now is about the same fundamental questions we were addressing then. This is the problem: nothing has changed, but much has got worse. The real problem is one of urgency. This is not just about an abstract theory of sovereignty; it is about the economy, who governs Britain and whether we can achieve economic growth, which is what the debate is actually about. We cannot achieve economic growth in the circumstances I shall now describe. In my judgment, it would be wrong to wait until 2017, given that the situation is so urgent, as hon. Members will hear in a moment. The British Chambers of Commerce, which represents 104,000 businesses and 5 million employees, is concerned about the delay and the uncertainty that goes with it and about over-regulation.

It is generally acknowledged by all parts of the House that our relationship with the EU has to change, but the trouble is with the institutional treaty changes, on which I have had meetings in Brussels. I saw Mr Van Rompuy only 48 hours ago and also Mr Olli Rehn, and the fact is that they are on a railway line, and are continuing along it. They talk about destiny, contracts with other countries—unenforceable as they might be—and more centralisation. The European Scrutiny Committee had an interesting meeting on that.

[Mr Jenkin]

In his travels around Europe, has my hon. Friend gained the impression that there is any appetite in the Commission or among our European partners for substantial treaty change that would allow the United Kingdom to have a different relationship with the EU while remaining signed up to the existing treaties?

[Mr Cash]

It is my opinion, based on extensive discussions yesterday and over several months, that there is absolutely no prospect of any changes that would even begin to alter the circumstances we are now in and which are pivoted on the existing treaties.

The problem is one of debt and deficit. We cannot pay for the public services needed in the country, whether health, education or whatever. I hear the point from Opposition Members and I agree with some of their arguments—it is not right that people should be deprived of services—and I do not believe that the entire answer depends on cuts. It depends on the subject of this debate, which is economic growth. We can grow with the rest of the world. We are running a trade surplus of about £13 billion with the rest of the world, other than the EU, with enormous potential in south-east Asia, India and Africa, which is where the emerging markets are. This is where we have to concentrate our efforts.

On our trade relations with the other 26 member states, I ask hon. Members to take account of the following very alarming figures. Two weeks ago, during a debate on the Maastricht treaty and the convergence criteria, I gave what was then the latest figure, which was that we were running a trade deficit with the other 26 of £47 billion. Now, some might think a deficit of that scale is an awfully big loss, but the following Monday the new figure came out. In one year, the deficit had risen from £47 billion to £70 billion. Furthermore, the German surplus, which was running at £30 billion, rose to £70 billion between 2011 and 2012. It is essential that we take note and hold this referendum—and hold it urgently—because we have to deal with fundamental changes in the relationship that will enable us to disentangle ourselves from the spider’s web that we have got caught up in and which we have not asked the British people about since 1975. It is a vital question of national interest, and I beg hon. Members to listen.

[Mr Jenkin]

Is not the corollary of what my hon. Friend is saying that if we follow the programme of the Labour party and continue to pursue a policy of closer integration and more burdens on our economy, it will mean more cuts, more borrowing, slower growth and more unemployment than if we sort out this relationship?

[Mr Cash]

My hon. Friend is completely right. Labour caused the debt and the deficit; now Labour Members want to engage in more borrowing without the growth that would come from expanding our trade with the rest of the world.

Banking Union and Economic and Monetary Union

Debate between Bernard Jenkin and William Cash

Tuesday 6th November 2012 Commons Chamber

[Mr William Cash (Stone) (Con)]

I beg to move amendment (a), in line 10, leave out from ‘and’ to end and add

‘whilst welcoming the Government’s desire to seek safeguards for the UK, calls on the Government in respect of Regulation (EC) No. 1093/2010 to use its best endeavours to ensure that the proposed changes in the voting rights in the European Banking Authority are not adopted, to use its veto in respect of European Union Document No. 13683/12 so as to ensure that the powers of the Governing Council of the European Central Bank are not unlawfully delegated to the Single Supervisory Mechanism without an amendment of the treaties and/or to refer that matter to the European Court of Justice for adjudication of that proposal.’.

I am deeply troubled by the wording of the motion. In my judgment, it simply does not make sense to state that the House should welcome

“the Government’s decision to remain outside the new supervisory arrangements while protecting the single market in financial services.”

We acquiesced in to the Lisbon treaty, the Labour party agreed to the transfer of jurisdiction over the City of London to the EU, which was wrong—the Single European Act was never remotely intended to produce such a result—and, furthermore, views I have received from the City clearly demonstrate that it does not believe that the proposals in the motion will protect the UK or a single market in financial services.

There is another massive issue about the rule of law in Europe. The Foreign Secretary, in his speech to the Körber Foundation conference in Berlin a fortnight ago, said that what bound us together in the EU and the reason for the Government wanting to remain part of it was that it

“has helped to spread and entrench democracy and the rule of law across Europe.”

The tragic reality is that the EU does not subscribe to the rule of law. On 17 December 2010, Madame Lagarde said about the first bail-out fund, the European financial stability mechanism:

“We violated all the rules because we wanted to close ranks and really rescue the euro zone.”

Germany and France themselves broke the stability and growth pact. Furthermore, both the Government and the Attorney-General are clearly of the view that the agreement on the fiscal compact was unlawful, but in reality nothing has been done—hence my call for the legal reserve on this matter, although the legal reserve issued before has never been implemented.

The Government know that the proposals referred to in the second part of my amendment are unlawful. The Council of Ministers’ own legal adviser, in a lengthy opinion which I have seen and which the Government cannot dispute, states that there will have to be an amendment to the treaties if the powers of the governing council of the ECB are to be delegated to the single supervisory mechanism.

The legal opinion says on the proposal amending the EBA regulation, in effect, that in terms of the EBA’s dispute resolution powers there is no justification for treating the ECB differently from banking authorities in non-eurozone member states by exempting it from those powers. To do so would be a clear breach of the principle in law of non-discrimination.

As to the proposal giving the ECB prudential oversight of credit institutions in the eurozone, the legal opinion states that in establishing the single supervisory mechanism the council must respect the legal framework for decision making within the ECB set by primary law—that is, the treaties. This framework does not allow the ECB’s governing council to delegate decision-making functions on banking supervision to a subsidiary body such as the SSM. There is nothing in the legal base for the SSM proposal, in article 127(6) of the treaty on the functioning of the European Union, which would permit secondary law—that is, this draft regulation—amending the rules laid down in primary law. There is no question about it and the Government know that.

Non-eurozone member states are not entitled to participate in the ECB’s decision making, so they can have no formal decision-making role in the SSM as conceived. Furthermore, the law on banking supervision in the EU will be made up of directives to a significant extent. This is a requirement of the treaties. That means that the ECB cannot propose one-size-fits-all legislation on banking union. Rather, it can propose legislation which allows for differences in national transposition.

We simply cannot countenance a situation in which there is a wilful breach of the rule of law and where the dysfunctional European Union vaunts the rule of law, yet deliberately breaks its own rules. This is precisely what led to the kind of constitutional crisis that we have seen in our own history when Governments from the Stuarts onwards claimed a divine right to rule but then broke the common law. This is the primrose path to constitutional disaster not only for the United Kingdom, but for Europe as a whole. I hope the House will understand my concern, as I suggested back in the 1990s that this would happen.

I hear what the Minister says but I cannot understand why and how, given comments that I have received from the City of which I am sure he is aware. Those in the City make it clear that the single market would be put at risk by an imperfect single market in financial services in which rules differed by level of membership of the EU. Furthermore, they say:

“It is essential that voting arrangements within the European Banking Authority are clarified so as to avoid members of the Banking Union voting together en bloc and imposing financial regulation on non-Eurozone members through qualified majority.”

For “clarified”—

[Mr Jenkin]

Will my hon. Friend give way?

[Mr Cash]

I will certainly give way once.

[Mr Jenkin]

Does my hon. Friend agree that for us to invoke the single market is doubled-edged, because in the end it will be the Commission that invokes the single market as a pretext for levelling the playing field which has been unlevelled by measures taken by the banking union? We will therefore finish up with measures that we do not want being imposed on us by qualified majority voting.

[Mr Cash]

That is precisely right. It was never intended when we voted—and I voted at the time, with a reservation about the sovereignty of the United Kingdom Parliament, which I was not allowed to debate—that we would be in this very position. That was in 1986 when I voted for the measure, but it was with that reservation.

To complete my point, where the comments from the City say “clarified”, I would say changed. We must change the rules, not merely clarify them, but we cannot do so because of QMV. That is the problem and it comes from the Single European Act.

Prime Minister’s Adviser on Ministers’ Interests

Debate between Bernard Jenkin and William Cash

Tuesday 17th July 2012 Commons Chamber

[Mr Jenkin]

I think the guidelines are the ministerial code, and it should be for the adviser to determine his own process, but it is perfectly reasonable for the Government and the Prime Minister to insist that the adviser has a quick process to establish prima facie cases and decide whether they are worthy of further investigation rather than go into the full process straight away. I can understand the Prime Minister being reluctant to refer cases to Sir Philip Mawer, who had established a very long, tortuous and indisputably fair process, but not one that could be quick under the pressure of political events as required.

[Mr William Cash (Stone) (Con)]

Has my hon. Friend given any thought to his own Committee’s involvement in pre-appointment scrutiny in the light of the comments and thoughts of the Liaison Committee on such questions?

[Mr Jenkin]

We held a hearing with the new adviser on Minister’s interests, but we were anxious—at least, I was anxious—to make it clear that it was not a pre-appointment hearing. Personally, I have absolutely no doubt of Sir Alex Allan’s bona fides and integrity. Unfortunately, we expressed the view that the manner of his appointment undermined the idea that he is actually an independent adviser, although he is certainly an adviser. He has a day job, too, in that he advises Ministers on their respective private interests and potential conflicts of interests, and ensures that there is a register of Ministers’ interests. That is his main job, and I have no doubt that he does it extremely efficiently. As I say, however, the manner of his appointment does not lead the public to believe that he is truly independent.

European Council

Debate between Bernard Jenkin and William Cash

Thursday 8th December 2011 Westminster Hall

[Mr Cash]

I think that the crisis is so great that that suggestion has to be taken on board seriously. I agree with the sentiment that lies behind that suggestion.

[Mr Jenkin]

I follow on the point about foreign direct investment that my hon. Friend made to the hon. Member for Wolverhampton North East (Emma Reynolds). It is interesting that Poland, which one might describe as a pre-in—it is not in the euro, but a pre-in nation state in the European Union—supports the German line. That is precisely because it is such a huge beneficiary of public subsidies arriving through the European Union, largely paid for by the German taxpayer, and because it is massively dependent on FDI. As a result it is effectively already a satellite state of the eurozone.

[Mr Cash]

We must understand that countries need investment. Therefore, in a sense, I am not critical about it. However, I know that the consequences of that are the reasons behind the problems presented to the Prime Minister tonight. There are dilemmas in the matter. I am not just being generous-minded; I understand that there is a triangulation, which is a problem.

I regard the Prime Minister to be, as it were, standing alone at the moment in a quadrangle that is surrounded by four 40 foot-high walls. On one side, he has the Euro-elite—Angela Merkel and Nicolas Sarkozy—and the Eurocracy. Another wall is the fact that he has to reduce the deficit, which he cannot do without growth, and he cannot increase growth without a viable European Union. Another wall is the Conservative party, not only in Parliament but in the constituencies, and the country at large. The final wall—I pay my respects to the hon. Member for Cheltenham—is the coalition and its ideas on the matter, which preclude repatriation and renegotiation—[Interruption.] The hon. Gentleman may say that, but we had it quite clearly stated.

European Union Fiscal Union

Debate between Bernard Jenkin and William Cash

Wednesday 14th September 2011 Westminster Hall

[Mr Cash]

The short answer is that it would depend on how the renegotiation went. If the renegotiation was entirely in line with protecting fully our own interests, if it were guaranteed that we were not tied to the existing arrangements by a treaty that drew us in to all the adverse consequences of being part of this overall European Union in the shape and form that it has at the moment and if we could manage to achieve the perfect answer, then that would be a good idea. However, I do not think that that is the way it is going to go. I think that we will put forward positions, if we ever get to the point of renegotiating the treaties. A meeting took place a couple of days ago in which it was clear that a very large number of MPs in the Conservative party want renegotiation. Some of us have been arguing for that for 20 years. However, the fact is that that is the position in the party as a whole. The question is not only whether we want to renegotiate, but how that would be done.

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

My hon. Friend makes an important distinction. The Chancellor of the Exchequer seems to be suggesting that we would consent to a fiscal union provided that we were insulated in some way from the direct effects of that fiscal union. My right hon. Friend the Member for Wokingham (Mr Redwood) is saying something much more profound, which is that we should use this opportunity to recover control over a whole lot of policies that are already damaging the British economy, and continue to damage the British economy, whether there is a fiscal union or not. It is that latter position that has to be, ultimately, subject to a referendum, or the danger is that we will sell the pass on fiscal union and we will not recover very much.

[Mr Cash]

I agree with that entirely. My hon. Friend is very much in line with the views of many us on this side of the Chamber, which is that if this is going to be done, let it be done properly. Let us not nibble away at some of the minor matters. Let us get down to the real nub of the issue and say that this kind of Europe is not a Europe with which we are prepared to continue. The status quo is completely untenable, and so a referendum question that dealt with those matters—including the question of fiscal union, because it will be so damaging, and I will give further examples of where I think it would be damaging in a moment—should be: do we want to leave the European Union all together; or, given that the status quo is untenable, do we want to renegotiate the treaties?

We now know that the bulk of the Conservative party, which, after all, is the bulk of the Government, wants renegotiation. The next question is, are we just going to nibble away and pretend that it is renegotiation, or are we going to get down to the structural questions and really do it? I believe very strongly that the Prime Minister has an obligation to go the next summit and to put forward proposals for renegotiating those treaties in a way that would actually change the entire system. If the other member states say, “No, we are not prepared to put up with that,” then we will deal with that situation at that point in time. The case for a referendum in either event, to my mind, is completely unanswerable.

On the question of fiscal union itself and damage to the United Kingdom, I have already mentioned the problems that will arise in relation to the single market bloc voting arrangements. We are always being told that our trading relationship with the EU is vital to us, and that it represents approximately 50% of our trade. Some dispute that, but the reality is that it is a substantial proportion of our trade. However, if one actually looks at the net results of the so-called benefits of that trading relationship, I am bound to say that in the past year alone, between 2009 and 2010, our trade deficit with the European Union, the other 26 member states, has gone from minus £14 billion to minus £53 billion. The deficit has leapt up by £40 billion in one year.

Those figures are taken from the House of Commons Library and the Office for National Statistics, so I am not going to dispute them—others may wish to do so, but they are official figures. I have repeated them several times and no one has challenged me on them. That demonstrates that our trade with the rest of the European Union is not working. The reasons for that are over-regulation and a system of economic constraints that prevent us from allowing our small businesses to grow. After all, small businesses make up the greatest percentage, by a massive amount, of the prosperity of this country. The downside of our failure to grow is increasing unemployment. We heard the figures today. The truth is that we are not growing because we are trading with a Europe that is bankrupt, except for Germany.

There is also the question of the position vis-à-vis the City of London. The Minister and I have crossed swords on this from the very outset. When the de Larosière report came out—it was about four years ago, I think—I wrote letters to the Financial Times, several of which it published. I argued that we had to keep the City of London within the framework of our own legislation and not appease those in the European Union, such as those in France and elsewhere, who would like to take control over our City of London. The Government caved in, and now the whole City of London is within the jurisdiction of the European institutions and the rules and regulations that will be made there. Every single time there is a new problem in the City of London, we will have to ask ourselves to what extent it is the consequence of that fatal mistake.

--- Later in debate ---

[Mr Cash]

That is all part of the problem. I have been on the European Scrutiny Committee for 26 years now, and over and over again I have found that legislation brought to this House is based on European legislation, but that is never disclosed. People do not say, “Oh, by the way, we have got to do this, therefore we are going to,” so we go through a charade of passing legislation as if we have control over it. The Whips move in like the clappers, saying, “You can’t possibly vote against this, because it’s all based on European legislation that we have already agreed to under the European Communities Act.” In reality, we are being governed by Europe, and that is my greatest objection—plus the democratic question, which the hon. Member for Blackley and Broughton has mentioned—and why I got so exercised about the Maastricht treaty. We have gone beyond that now, and what we are faced with is much more critical, but we can remedy it if we renegotiate the treaties.

[Mr Jenkin]

Before my hon. Friend leaves those shocking trade figures too far behind him, do they not demonstrate another factor? Our European partners, notably Germany, have far more to lose by disrupting the trading relationships between us and the rest of the EU than us. I do not diminish the point that we want to maintain the free movement of goods within a customs union, if we can, but the idea that they simply will not talk to us or chuck us out is absolutely ludicrous.

[Mr Cash]

Given the growth the rates elsewhere in Europe and the complete mess that the eurocrats and other Governments—including our own—have created, allowing us to get into this parlous state, it is inconceivable that they would dare to argue that somehow or other they could operate without us. That suggestion is simply child’s play and a joke, although it has got beyond a joke because it is so serious. That seriousness might come out this afternoon, but it will certainly come out—as night follows day—over the next few months.

I have been looking into the £53 billion trade deficit. I made some further inquiries, because I wanted a breakdown, and I was given the figures yesterday. In the trade balance of £53 billion against us, £17 billion is in vehicles—cars and lorries. In other words, we have destroyed or have had destroyed our manufacturing base in car making—my hon. Friend the Member for Luton North knows that better than me—and yet our trade in commercial and other vehicles is now on a monumentally adverse basis.

Another point that I am bound to make, which is deeply concerning, concerns the consequences of the departure of one or more states from the European Union, which some advocate. Some will have read Hans-Olaf Henkel in the Financial Times the other day. He is the former head of German industry, the equivalent of the director-general of the CBI, and he said that the “biggest professional mistake” of his life was to have supported the euro process, which is an important statement from someone of his standing. He is completely against the idea of the European Union as it now is. Germany has some very important voices, because it is effectively the paymaster for the rest of Europe.

Our negative trade balance with Germany is devastating. I was in Poland the other day, and I looked at its trade figures. I suspect that a lot of people in Poland desperately want to remain within the framework of some protective system but are deeply worried about the imbalance between Germany and Poland. And so it goes on—if we look at the Greek or Spanish situations and at the bottom line, what is happening with fiscal union is also, to use an expression, the creation of a greater Germany. For practical purposes, if we examine what is said at the various meetings, no one can be in any doubt that the Germans call the shots. The Germans are benefiting enormously from the European Union for one reason, which is that they are benefiting from their investment in other countries.

In that context, I have the figures for unit labour costs, if anyone is interested. In the past 10 years, German unit labour costs have gone up by only 2%. The average of all the other member states put together has unit labour costs increasing by no less than 25%. That is worth thinking about. Not only do we have the most monumental trade balance against us with Germany, but its trade balance with the rest of Europe is monumentally in its favour, and the Germans have done that largely through what we might call their skill or commercial nous. None the less, they have managed to do it and so they make huge profits from other parts of the European Union. Let us not be taken in by the argument that, somehow or other, Germany will suddenly go walkabout. The Germans get so much out of the European Union, and Angela Merkel is making it clear that they will continue to do so, and that is one of the reasons why Germany is so committed to political union. That does not mean, however, that it is in our interest.

European Union Bill

Debate between Bernard Jenkin and William Cash

Monday 11th July 2011 Commons Chamber

[Mr Jenkin]

I agree with my hon. Friend. I rather like the hon. Member for Caerphilly, who is an engaging and assiduous parliamentarian, but I do not know whether he has given vent to his real feelings on these matters. Unfortunately, if one is speaking from the Front Bench, one’s real feelings rarely matter. One just has to do the bidding of one’s superiors. I just wish to end by—

[Mr Cash]

Before my hon. Friend ends his speech, would he be good enough to allow me to put one thought to him? The number of occasions when the referendum will be required has been dramatically, drastically and absurdly reduced by the Lords amendment. However, does he agree that the fundamental question is not whether we select what functions might or might not be affected, but the whole business of our relationship with the EU, that completely failed project, which is quite clearly causing enormous damage not only to the UK but to other countries? That is the test on which a referendum should be determined. It should not be determined just on the minutiae of individual questions, including the single currency, foreign policy and so on.

[Mr Jenkin]

If I follow my hon. Friend’s question, he thinks that we should have a referendum on more questions than are raised in the Bill. I agree with him.

[Mr Cash]

My hon. Friend is a genuine friend. The referendum should be not on more questions, but the question: the European question.

[Mr Jenkin]

I know that my hon. Friend does not advocate an in-out referendum, but the general direction of the EU certainly merits a referendum at some stage. I still flirt with the idea that we should have a referendum on the proposed treaty amendment. My right hon. Friend the Minister for Europe adverted to the fact that four fifths of the British public think that we should have a referendum on any treaty amendment. That seemed to be the substance of the Government’s original commitment, which has been hedged in the Bill.

Perish the thought that I am straying from my support for the Government on the Lords amendments—I would rather stay where I am—but I would finally wish to remark that the authors of the Lords amendments have a track record of their own. The introducers of the amendments are not minor figures. The amendment on the threshold was introduced by Lord Williamson of Horton—he who was secretary-general of the Commission during the passage of the Maastricht treaty; he who was the secretary-general who pushed through the social action programme, which negated any effective UK Government opt-out from the social chapter; and he who was one of the architects of economic and monetary union, which is now collapsing around our ears.

In Lords amendment 8 to clause 6, which incidentally completely fails to define, as my right hon. Friend the Minister for Europe said,

“a single, integrated military force”,

Lord Williamson is pretending that we should have a referendum on defence matters. However, I would just pose this question: does NATO constitute

“a single, integrated military force”?

I would submit that it probably does not. We could therefore form a NATO-style command structure in the EU, which successive Governments have set their face against, and pass such powers into the treaties of the EU, without a referendum. I hardly think that the British people would vote for that.

The noble Lord Hannay, former permanent secretary at the Foreign Office and former chief negotiator for the UK in the EU—an illustrious and distinguished person—is also an author of the Lords amendments. Do not mistake me: I have great admiration for the ability and sincerity of those people, but I just advert to their track record of advocating policy on the EU. Lord Hannay said quite recently that the single currency would be quite a good thing for the UK, as did Lord Kerr of Kinlochard. As recently as 26 May 2009, the latter delivered a lecture in Edinburgh on monetary union, in which he lamented that we were not trying to join the single currency.

I raise those points not to stray from the substance of the debate, but just to question whether the people who proposed the Lords amendments should not stop trying to get Britain further into the EU, and start apologising for the appalling judgment and advice that they have given to successive Governments. Their advice has put this country into a perilous economic position—because of the state of the EU and the euro—but they have also advised successive Governments to hand over more and more powers. I would not usually criticise civil servants in public, but they are now taking part in the political process having advised successive Governments to hand over more and more powers, as a result of which Governments have been in an ever-weaker position from which to defend our national interests.

The Bill is a small step towards starting to redress the balance in the relationship between the overweening power of the EU and the people in this country governed by the laws it makes.

--- Later in debate ---

[Mr Jenkin]

May I just test my understanding? Am I right in thinking that my hon. Friend is saying that the original wording of the clause, covered by the Interpretation Act, covered everything, but referring specifically to the European Communities Act 1972 serves to limit the meaning of the clause so that future amendments to the 1972 Act will not be covered by it and are therefore subject to the interpretation of the Supreme Court?

[Mr Cash]

Effectively yes, and that is the one thing we wanted to avoid above all else. That is why the Committee took the view that it did on clause 18, as shared by Lord Howe of Aberavon, who is by no means a Eurosceptic. On a matter of clear interpretation after very considerable consideration—he is both a former Foreign Secretary and distinguished Queen’s counsel who brought the European Communities Act into being in the House of Commons in 1972—he says that clause 18 is completely unnecessary. He agrees with the Committee, and now, for the sake of trying to counter-balance the views of Lord Mackay of Clashfern, the Government are falling into the trap that I have described and making the potential for interpretation by the courts extremely dangerous.

--- Later in debate ---

[Mr Jenkin]

I do not wish to detain the House for more than a few minutes. I had not intended to take part in this debate, as I took part extensively in the debate on clause 18 in Committee and I thought that we had covered all the issues then. I had become reconciled to accepting the clause as the Government had drafted it and I came to today’s debate expecting my hon. Friend the Member for Stone (Mr Cash) to make a technical argument, but one that would not necessarily excite me—of course I was wrong. The hon. Member for Caerphilly (Mr David) says that the clause does not take us back and it does not take us forward, but he has missed the fundamental point about the revised drafting of the clause. I am not a lawyer—I am an amateur lawyer—but ever since we started discussing this clause earlier this year, I have had the sinking feeling that we are in very deep water and that we are potentially creating completely unnecessary problems for this House and for Parliament. I say that because the sovereignty of Parliament is axiomatic; it is self-evident and it is a historical fact.

We do not need to legislate in any way to maintain the sovereignty of Parliament. There would have been some virtue in a declaratory Act with the legal effect of returning powers to the United Kingdom from the European Union to redress our relationship so that we had the ability to negotiate, but this clause, which has erroneously been nicknamed the “sovereignty” clause but is no such thing, does not even attempt to do that. In fact, it does not even refer to the word “sovereignty”.

The clause puts in statute issues that are contested by the European Union legal structures in a context that means that the Supreme Court might have to interpret them. We know that some justices of our Supreme Court question the very notion of the sovereignty of Parliament as I have described it and think it is a matter of common law rather than of history and fact. I believe they are wrong and that Parliament will always be able to prove them wrong by legislating, as statute law always overrides common law.

[Mr Cash]

Would my hon. Friend be interested to know that I was talking to an extremely eminent lawyer, although I hesitate to say who it was, and when he heard my arguments on clause 18, he said, “If a majority of the justices of the Supreme Court took the view that you are taking, it would be open to Parliament the next day”—he used those words—“to reverse that”? That troubles me, because if that happened it would precipitate a 100% crisis.

[Mr Jenkin]

I am grateful to my hon. Friend for drawing the House’s attention to that conversation. We are potentially engaged in the early skirmishes of a dispute between Parliament and the judiciary about which has supremacy. By legislating on this issue, which touches on the sovereignty of the Queen in Parliament, we are tempting the justices of the Supreme Court to begin toying with those concepts. They have already done so in some of their ancillary statements to cases—I forget the right word for such statements. We know that they are tempted in that direction and putting this clause into statute, as the evidence received by the European Scrutiny Committee showed, could be the red rag to the bull, providing meat for the justices of the Supreme Court to chew on.

Common Consolidated Corporate Tax Base

Debate between Bernard Jenkin and William Cash

Wednesday 11th May 2011 Commons Chamber

[Mr Jenkin]

But that was always the danger with article 5 and the subsidiarity clause. There are some very general objectives set out in the treaties, and subsidiarity is one of those catch-all arrangements that can justify stretching the meaning of other articles, as we have already seen.

How does the European Union justify the bail-out mechanism that the previous Chancellor of the Exchequer approved under article 122 of the Lisbon treaty, which was designed for natural disasters? How can a crisis in the euro possibly be classified as a natural disaster? The mechanism has, however, been allowed to go through by default.

The arrangement before us is another that will go through by default if we do not challenge it. Indeed, article 26 of the draft directive, the penultimate paragraph of the preamble, states:

“The objective of this Directive cannot be sufficiently achieved through individual action undertaken by the Member States because of the lack of coordination among national tax systems.”

It goes on to justify the objective as being

“in accordance with the principle of subsidiarity”—

and in its own terms that is very difficult to argue with.

I appreciate the European Scrutiny Committee’s points about the direct legal base, but the European Union is going for an indirect legal base. That demonstrates that subsidiarity was always a deceit. It was always something that could be a centralising, as opposed to a decentralising, concept, and if we rest our case against the proposal purely on the principle of subsidiarity we will allow the EU, rather than what we want ourselves, to determine what is imposed upon this country. If we rest our case against this proposal purely on the principle of subsidiarity, we are allowing the European Union to decide what shall be imposed on this country rather than deciding what we want for ourselves.

[Mr Cash]

I know that my hon. Friend was able to come in only somewhat late in the debate, but the arguments that we have been presenting show that there are a whole series of weapons that we can employ. Subsidiarity happens to be a procedural device that is available to us by way of a reasoned opinion, which is what the motion is about. We are critical of the Government’s position in that they have not exercised their political will, for all the reasons that my hon. Friend and others have explained. This whole business is an infringement not merely of the word “sovereignty” but of the practical requirements of the people of this country to tax themselves by consent. That is what it is all about.

[Mr Jenkin]

There is absolutely no difference between me and my hon. Friend on that point.

To echo my right hon. Friend the Member for Wokingham (Mr Redwood), the Budget moment in the calendar of this House is the most important political occasion of each year, when the Chancellor comes to this House to deliver his Budget judgment and it is for the House to determine what the levels of expenditure, taxation and borrowing should be. That is absolutely fundamental not only to the mechanics of our democracy but to the culture of our democracy and the culture of this House. This proposal is a very direct challenge to government by national democratic consent.

The only, rather lame and late, point that I might be adding to the debate is a very simple one, and I do so for the same reason as that which led my hon. Friend the Member for Stone (Mr Cash) to lambast the concept of subsidiarity when it was first proposed in the treaty on the European Union back in 1992—the Maastricht treaty. It is, very simply, that subsidiarity is not sovereignty. Subsidiarity is subservience; it is submitting to the jurisdiction of the European institutions instead of the sovereign judgment of the British people as expressed in this House. Subsidiarity is no substitute for Government saying no, particularly where the veto is in their hands. I urge my hon. Friend the Minister to exercise that veto, knowing that she will have the confidence of the British people behind her, because they do not want her to say yes in this case.

United Kingdom Parliamentary Sovereignty Bill

Debate between Bernard Jenkin and William Cash

Friday 18th March 2011 Commons Chamber

[Mr Cash]

It would be highly desirable. This Bill would in fact succeed the European Union Bill in order. We know that any Act of Parliament that is subsequent to a previous Act and is inconsistent with it, particularly in the context of sovereignty issues, overrides the previous Act. Therefore, if this Bill were enacted—if it followed the European Union Bill—it would supersede it. It would thereby also have the great advantage of overriding the manifestly absurd and, I believe, completely unlawful motion—unlawful in constitutional terms—that was passed, which said that this House did not reaffirm the sovereignty of the United Kingdom Parliament. When I use the word “unlawful” in this context, I simply mean that the European Union Bill is still under consideration by both Houses. I am using that expression with regard to the constitutionality of the matter, but it is a very important question and I am glad that the hon. Gentleman has raised that point, because it is important that we get it straightened out.

I come back to the explanatory notes. The report that the European Scrutiny Committee produced, which was unanimous, particularly on clause 18, was based on evidence from pretty well all the pre-eminent constitutional experts on what sovereignty meant in the context of the European Union Bill and in general. There was complete unanimity that the Bill did not contain what was on the tin, that it did not confer sovereignty and that the provision was not needed. However, read in the context of the explanatory notes, the invocation of the common law principle, which is a very profound question that has been raging in academic circles and the establishment for a long time, has the effect of reinforcing the view expressed in certain quarters, particularly in certain parts of the Supreme Court, that the sovereignty of Parliament is qualified by the ultimate authority of the courts, which is not something that the public at large would agree with, to say the least, or, for that matter, that they even knew was happening. The expression “common-law principle” has now been taken out of the explanatory notes, which is a great victory for the European Scrutiny Committee and will help substantially to alter the position in the right direction.

I am not convinced that the argument has been completely resolved, but the discussions of the kind that we are having today are helpful in further removing any doubt about the question of the sovereignty of Parliament. That is because the sovereignty of Parliament is not a purely theoretical abstraction; it is to do with the practical application of law passed in this House and in the other place for the purpose of implementing legislative proposals emanating from the Government or other sources to reflect the views of the electorate. In other words, this is essentially a democratic question.

In cases in which European Union law, European Court of Human Rights law and European convention law contradict the wishes of the electorate, it must be made clear that the sovereignty of Parliament will override such provisions in a way that ensures that the wishes of the electorate are complied with, consistently with general election and manifesto pledges, irrespective of coalition agreements, and in a manner that guarantees that the electorate’s views are not only understood but put into effect.

[Mr Jenkin]

I took part in the debates on the European Union Bill, and the European Scrutiny Committee is to be commended for what it achieved in setting the record straight that sovereignty was not a common law principle but a fact of history. However, what we proposed in that Bill, and what is being proposed here, is to put the word “sovereignty” into statute. My hon. Friend’s Committee never took advice on that question, but we rather assumed that this would be a good thing to do. What does he say to those who are concerned that it would actually make the concept of sovereignty justiciable if we placed it in statute, and that we are in danger of drawing the courts into a dispute with Parliament about what sovereignty is?

[Mr Cash]

I accept that that is an important point, but we have been put in this position, historically and legally, by the manner in which the European Communities Act 1972 has increasingly been eating away at the way in we legislate in this House.

This is a difficult question, and I do not want to get too historical about it, but similar considerations arose at the time of the passing of the Bill of Rights, and also in the proposed constitutional settlement around 1648. At that time, the sovereignty of the monarch was regarded by the Crown as absolute, and there was a question of how to deal with that. Unfortunately, it was dealt with, in the words of Oliver Cromwell, as a matter of “cruel necessity”. Despite the fact that many people did not want it to happen, he took off the King’s head as a symbolic demonstration that the King was no longer sovereign.

--- Later in debate ---

[Mr Jenkin]

One of the most important points made by my hon. Friend the Member for Christchurch (Mr Chope) was that there is no substitute for Parliament exercising its sovereignty. In that respect, our amendment to the European Union Bill and the Bill before us are a cry of despair. They are not a substitute for Parliament exercising its sovereignty. No amount of legislating for parliamentary sovereignty will match the exercise of our sovereignty. As one of my hon. Friends said to me this morning, it is a bit like the parish council beating the bounds of the parish. It is a long time since we exercised our sovereignty in that way here, but sooner or later we are going to have to do so, to prove that we still have it.

[Mr Cash]

The question also arises in the context of assertions by the courts. It is important that we respect the independence of the judiciary, but the judiciary in turn must respect the rights and privileges of the elected House of Commons and, indeed, Parliament as a whole. The claims that have been made, which are set out in the European Scrutiny Committee report, clearly demonstrate that moves are not only afoot but under way to qualify the sovereignty of the United Kingdom Parliament and Acts of Parliament. Such moves fall back on an assertion that they are relying on the rule of law. I have asked questions about this repeatedly, not least in a debate in Westminster Hall yesterday on the Bill of Rights, and suggested that we ask these questions: whose law, which law, and how has it arisen?

Parliamentary Voting System and Constituencies Bill

Debate between Bernard Jenkin and William Cash

Wednesday 16th February 2011 Commons Chamber

[Mr Cash]

I entirely endorse the final remarks of the hon. Member for Rhondda (Chris Bryant)—the Government amendment in lieu is a load of rubbish.

It is important to get across what is really going on here. In the context of the referendum, the Conservative party is being led like a lamb to the slaughter. The reality is that the referendum is entirely to do with Liberal party aspirations as expressed in the coalition agreement. I have here an extract from the right hon. Member for Deauville—[Laughter.] I meant the right hon. Member for Yeovil (Mr Laws), who might as well have come from Deauville. He quotes the Secretary of State for Energy and Climate Change, the right hon. Member for Eastleigh (Chris Huhne), as saying:

“Our historic mission is to create a British Liberal party whose influence will be embedded in our politics through a reformed voting system – a Liberal party capable of dealing with both other parties.”

The reality, therefore, is that what lies at the heart of this debate is not the rubbish that we have heard from the Minister on the Electoral Commission, but the glue that holds the coalition together.

I pay tribute to the noble Lord Rooker and the other Lords and Ladies who made such magnificent speeches this morning, which I had the privilege to witness. They are right that the Bill provides for a binding referendum, and that the essence of the argument is that the Bill is a constitutional issue, because it proposes to change our constitution in a fundamental way for the first time.

I believe that 40% is a reasonable test. It is accepted by all the constitutional authorities—including, ironically, Vernon Bogdanor, who was the Prime Minister’s own tutor. This threshold of 40%, which has come down to us in an amendment from the House of Lords, is reasonable and fair with respect to the electorate as a whole. We are being asked to reject that provision. I am no longer going down the route of my original proposal, which one of their Lordships referred to as “the fatal amendment”. I propose, for all the reasons that have been so ably put forward this evening, to follow what the House of Lords said.

There is no reference to thresholds in this coalition agreement—none whatever. None of the political parties expressed any genuine manifesto commitment to the alternative vote and no commitment whatever to the threshold. Given that the Bill purports to provide for a fair electoral system with preference votes, one would have thought that its proponents would at least have the decency and common sense to give the electorate a fair deal—[Interruption.] Yes, and the courage, as one of my hon. Friends says. I thought that the Liberal Democrats believed in fairness and constitutional propriety, but I was mightily mistaken.

[Mr Jenkin]

Can we dispense with this argument that any kind of threshold somehow provides an incentive for the no campaign to campaign for people to stay at home? The truth is that this is simply a test of whether there are enough people motivated in favour of change to justify it. If enough people are not prepared to vote for change, why should it take place? That seems to me to provide the reason why a threshold should exist for every referendum. Incidentally, when the Conservatives were in opposition, we voted for a threshold in every referendum.

[Mr Cash]

I agree with my hon. Friend and point out that no European country other than France does not have a threshold. Over the generations, we in this House have always regarded constitutional matters as of such fundamental importance as to require a free vote and to rule out the sort of programming and guillotining that we are seeing here. Yesterday, I had a mere two minutes in which to express the arguments on my amendment.

I heartily dislike this Bill and I believe that its effect will be exceedingly damaging to the Conservative party and exceedingly damaging to our national interest. I strongly urge my hon. Friends to vote for the threshold arrangements proposed by the noble Lords. I believe that doing so would be in the interests of the Conservative party, its individual members and its councillors who are soon coming up for local elections, as well as in the national interest of the electorate as a whole.

Other Members wish to speak, so I shall bring my remarks immediately to an end. The Government should be careful about what they wish for because it might come true.

European Union Bill

Debate between Bernard Jenkin and William Cash

Wednesday 26th January 2011 Commons Chamber

[Mr Cash]

I congratulate my hon. Friends the Members for Hertsmere (Mr Clappison), for Daventry (Chris Heaton-Harris) and for Esher and Walton (Mr Raab) on their speeches.

After 26 years of scrutinising treaties of one kind or another, sometimes tabling as many as 120 or 140 amendments, debating them in detail and listening to the arguments put forward by Government spokesmen, who say, first, for example, that we have reached the high water mark, and then that the measure is not what some people fear, perhaps it is inevitable that I have developed a certain resistance to the assumption that what we hear from the Front Bench will necessarily occur—I hope that is a nice way of putting it—and that I have become if not cynical, which would be an unfair word, at least uncertain about the consequences that subsequent events may produce.

In other words, we do not get what it says on the tin, or necessarily what we are told we are likely to get. I am very sceptical, not just Eurosceptic. I question not the honesty of individuals, but the accuracy of their predictions. I therefore believe that this set of measures, as has been amply described by my hon. Friend the Member for Hertsmere and others in this debate, is hugely important, although not more important than any of the other provisions that are part of a continual stream of acquiescence in European integration.

Where the provisions speak of not allowing measures to go through by way of opt-in, by imposing the requirement for some kind of parliamentary approval, I am well aware that we table amendments, we argue the case, we have a European scrutiny process, we go through it in detail, it has been universally applauded by Ministers and people throughout the land—

[Mr Jenkin]

Except the BBC.

[Mr Cash]

Except the BBC, as my hon. Friend says, because it has not given any attention to the legislation.

The process has received a great deal of enthusiastic support, except when it comes to the votes. For all the flattering remarks made periodically about the members of the Committee and dedication and determination that they have applied, nothing happens. We do not get any of our amendments through and the Chamber is virtually empty. There is one assiduous Member on the Opposition Back Benches. I pay tribute to the hon. Member for Birmingham, Edgbaston (Ms Stuart). She has the seat which, I think, used to be Birmingham, Central in the 1880s. She was not around at the time, but she is carrying forward a fine tradition of ensuring proper scrutiny. Her predecessors in that seat were assiduous in ensuring that the interests of the people of Birmingham were well looked after. I pay tribute to her not only for the fact that she is here today on her own on the Opposition Back Benches, but that she is taking an active part.

--- Later in debate ---

[Mr Jenkin]

Amendments 82, 83 and 84 concern what the Minister set out in a statement last week, in which he described the arrangements for the Government to give formal notification of whether they wished the UK to opt out of certain justice and home affairs matters by 31 July 2014. He made it clear in the statement—I think this is welcome—that the Government intend to allow the House of Commons and the other place to table a formal resolution to approve or disapprove of the action the Government take in these matters.

While we are listening to this debate, it is worth reminding ourselves of the magnitude of what we are talking about: a complete rearrangement of the civil and criminal legal system of our country that will move the whole civil and criminal system on to an entirely new basis. I hear what my hon. Friend the Minister says about the number of advocates-general and about maintaining four judges in the European Court of Justice who represent common law jurisdictions, but that is a completely meaningless reassurance in the face of all the other judges and the history of the jurisprudence of the European Court of Justice, which simply is not interested in the common law basis of the jurisdictions of its member states.

Having fought against the Lisbon treaty in principle and most particularly on the basis of its potential to interfere in the criminal and civil law of this country, it is astonishing that the Government, since the election, have, for example, approved the directive establishing the European investigation order. Let us be clear: that allows another member state to oblige the United Kingdom to carry out almost any investigative action in the UK, including searching a house, intercepting telephone calls and obtaining DNA for the purpose of criminal proceedings in the requesting member state. The UK has supported the directive on the right to interpretation and translation of criminal proceedings, ceding jurisdiction in that area to the European Court of Justice. This all happened before the European Scrutiny Committee was sitting, so it was all unscrutinised by this House. Any weasel words from the Government about strengthening the scrutiny of the House of Commons should carry a health warning.

The Government have decided to opt in to the Council decision on the conclusion of an agreement between the European Union and Georgia on the readmission of persons residing without authorisation, which makes binding on the UK as a matter of European Community law an international agreement between the EU and Georgia and means that the UK cannot conclude its own readmission agreement with Georgia, should it wish to do so. I just point out that had any of those decisions been in an international treaty outside the European Union’s jurisdiction, they would have required an Act of Parliament, but these things are done by the stroke of a Minister’s pen under the powers in the European Communities Act 1972.

[Mr Cash]

I am sure that my hon. Friend will recall what the Minister said about the European Affairs Committee of the Cabinet, and the fact that we have two thirds Conservatives and one third Liberal Democrats. For practical purposes, there cannot be a vote; otherwise, if we were to comply with our manifesto commitments, we would win the vote every time. It must be, therefore, that the Government are willing to agree with the Liberal Democrats’ proposals, which makes it even worse.

[Mr Jenkin]

I thought the exchanges between the two Front Benchers about the real nature of the coalition agreement were very revealing. We have all known about this from the minute that the coalition agreement was first mooted. That is why I was one of the newly elected Members who went to see the then Leader of the Opposition, just after the election, and said, “Do not do this; let us have another election in short order so that we can deliver our mandate and our promises to the British people.” We knew that we were being bound into an arrangement that would mean having to swap our obligations to our electors—let us face it, handing criminal jurisdiction over to the European Union is not exactly a popular thing to do—for a mess of pottage: a compromise with the Liberal Democrats. The Deputy Prime Minister took great interest in these matters, particularly justice and home affairs, when he worked for the European Commission and I understand that he is personally extremely committed to the creation of a federalist criminal justice legal order as part of the state building of the European Union. We are now actively participating in that.

--- Later in debate ---

[Mr Jenkin]

My hon. Friend is absolutely right. We are going into this with our eyes wide open, except that this Bill has its eyes wide shut. The Bill pretends that there is no decision to be made between now and 2014 about this momentous change to our criminal justice system and the way the law is conducted in this country—to the protection that Parliament can currently afford to UK citizens but is now already being eroded.

So I have tabled a series of amendments. There are some choices for the Minister, and I would be interested to know which he prefers. Amendment 82 would mean that the Government have to gain the approval of a referendum before they decide that the UK should not opt out of these laws. Amendment 83 would require the approval of at least an Act of Parliament for the Government to do so. Amendment 84 is quite modest; it would require an Act of Parliament before the Government could opt back in to any of the laws that had ceased to apply following the 2014 opt-out decision.

This is a question of more or less power being transferred to the EU, which would fundamentally alter our criminal justice system, but it is being left entirely up to Ministers.

[Mr Cash]

In the light of my hon. Friend’s intelligent observations, does he also agree that the process of Europeanisation, not merely by default, but by activism, despite our manifesto and despite the common sense and the wishes of the people at large, who vote for us by the way, will mean that we increasingly hand ourselves over to an entity, a European Union, not Europe, which is manifestly failing on all fronts, with protest, riots, the whole place imploding—Greece, Spain, Portugal, Italy and Ireland? The whole situation is moving entirely in the wrong direction. That is the big landscape, and that is where the Bill fails.

[Mr Jenkin]

I fully agree with my hon. Friend, but I will try to avoid being drawn into that. The great skill in Committee debates is to avoid making the same speech over and over again. However, I will be guilty of repeating something that I have said before, which is that the EU is made up of democracies, but it is not itself a democracy. It is anything but a democracy; it is a bureaucracy. It has some institutions that purport to be democratic, but they have only the most tenuous link with the real aspirations of the peoples they seek to serve. The unaccountability of the most powerful institutions of the EU, namely the Commission and the European Court of Justice, is legendary. They spend money like water and they have yet to have their accounts formally approved by the Court of Auditors for the last 14 years. That is how unaccountable the institutions are to which we are handing over the jurisdiction of our criminal law.

That is why I am mystified by the Government’s complacency, except, as the Minister has now admitted, for that fact that we traded away our principles for power. Moreover, we did that not just in the national interest for a short period, but for five years. I am pretty certain that before five years have passed this country will be crying out for a general election. When a country finishes up with a Government who have no mandate, except an agreement that was invented between two political parties, we are in a dangerous situation. It was not for nothing that Benjamin Disraeli said that England does not love coalitions; if a party is an organised hypocrisy, I dread to think what the correct term for a coalition should be, except as an expedient in an emergency.

European Union Bill (Programme)(No. 2)

Debate between Bernard Jenkin and William Cash

Monday 24th January 2011 Commons Chamber

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

I rise briefly to plead that we do not divide the House on this matter, because time is pressing. However, I am prepared to forecast that we will not get beyond the first group of amendments today. The Bill, if about nothing else, is about what might trigger a referendum, and the first group is concerned with that matter. It is extremely likely that we will not discuss much else today, given that that is the heart of the Bill. That suggests that the timetable motion is ill-conceived. Although it is generous of the Government to add an extra day, that does not resolve the problem we will have today, which is that it is most unlikely that we will discuss anything about clauses 2, 3, 4 or 5, the new clauses relating to clauses 1 to 5, or anything else. That is not what was envisaged when we discussed the strengthening of Parliament in the previous Parliament. A great disadvantage of these very curtailed debates on contentious pieces of legislation is that there is an incentive for people to use up the time for the convenience of the Government, rather than to provide a platform for those who actually want to discuss the Bill.

[Mr Cash]

Does my hon. Friend recall the speech made by Mr Speaker only last week, in which he drew attention to the necessity not only to maintain the sovereignty of Parliament, but to ensure that the Government are held properly to account? That was from Mr Speaker himself—a most unusual, but very important speech. What we may witness today would be in defiance of the principles that he enunciated.

[Mr Jenkin]

I agree with my hon. Friend. We have yet to find a way of respecting the Government’s right to obtain their legislation in reasonable time, subject to the consent of the House, and of reasonably limiting the time spent on debate, while ensuring that all parts of the Bill are debated properly. We do not want to start following the example of the other place, where a tiny minority of Members are brutally filibustering, but we do need to improve the procedures that we have today. It is a sad comment on the state of the House of Commons under this new Government, who purported to believe in something called “new politics”, that we are carrying on the old politics implemented by the Labour Government.

European Union Bill

Debate between Bernard Jenkin and William Cash

Monday 24th January 2011 Commons Chamber

[Mr Cash]

Amendment 1 would deal with the exemption condition, which in turn would deal with that mission creep, the accession issue and the question of mixed treaties.

[Mr Jenkin]

I will deal briefly with my hon. Friend’s amendments, which deserve consideration and which I will support if there is a vote. The original pledge was that any new treaty would get a referendum—that was what we were told at the Conservative party conference in 2009. That was going to be the real referendum lock. It seems that the proximity of office blunts the senses, and “any treaty” is now only “certain treaties”.

We are now faced with a treaty of enormous significance in the EU—the treaty for fiscal union that Monsieur Fillon came over to propose to the Prime Minister last week. We will be told that it will not affect us, because there is no transfer of competence, no change in voting rights, no imposition of obligations and all the rest, and that it is not significant, so there is no need for a referendum. I remember being told that we could ratify the Maastricht treaty because it did not really affect us as we would have an opt-out from monetary union, but look how it is affecting us. There is no such thing as “Does not affect us”. Of course, if we were not in the European Union and it went ahead with fiscal union, it would affect us, so it will be argued that we cannot object as long as we have proper opt-outs.

The problem is that we are in the EU and under the European Court of Justice. We are in the decision-making institutions and in the legal jurisdiction of what will become a fiscal union. It is impossible for anyone to argue that the development of the European Union can go ahead to such an extent without affecting legal decisions in this country. Yet the Bill excludes any possibility of a referendum on an extremely significant treaty. That provision should have been in the Maastricht treaty—we all argued for that when monetary union was first discussed. We all pointed out that the no-bail-out clause was worth nothing—article 104c is emblazoned on my heart. We all argued that there could not be monetary union without fiscal union. We warned of the consequences of monetary union without fiscal union, and stressed that our opt-out was meaningless and would not protect us from the consequences of the Maastricht treaty. Now we are warning again that we should not allow the treaty to go ahead unless we get sufficient opt-outs and exemptions from the existing acquis communautaire, yet the Bill does not provide for a referendum.

--- Later in debate ---

[Mr Jenkin]

I agree that it is better, if only because it generates an expectation and a moment that will come in our history when people say, “Up with this we will not put! We are having a referendum.” To that extent, it is useful background noise, but I put it no higher than that. It is not fulfilling what we promised before the last general election.

[Mr Cash]

I am sure that my hon. Friend will accept that the real problem is the European Union as it now is. We are not having a referendum on any aspect of the mess that Europe is in. Everybody in the Committee has to accept that the riots, the protests and the collapse of the euro—all these things—are the consequence of the failure of European economic governance that has been predicted from Maastricht onwards. The Bill will do nothing to change that because it does not provide for a referendum on the circumstances that we are now in.

[Mr Jenkin]

I am grateful to my hon. Friend.

I hear the plea of my hon. Friend the Member for Devizes (Claire Perry), but I believe that there is a constant danger of us succumbing to wishful thinking. The problem is that this is not the “thus far and no further” Bill; it is the “locking the stable door after the horse has bolted” Bill. What is more, whatever other horses there may be in the stable, there are sufficient holes in the door for those horses to squeeze through, if it is convenient for the Executive to allow it to happen. That is what we will see with the treaty coming down the track for EU fiscal union. The Bill will not increase the happiness of the British people about our present terms of EU membership. The Bill fails to address those terms, but they will have to be addressed at some stage in the future.

I refuse to sign a referendum pledge, as I was recently asked to do, saying, “Let’s have an in-or-out referendum”. That is not the way to conduct this debate; the way to conduct it is for the Government to set out their national interests and negotiate robustly for them in the European Union, rather than to continue appeasing the system to avoid a row. I even accept that we may need to do that for a period, while we are in such a difficult fiscal position, but the moment that the EU is asking for treaty changes for which it needs our consent is the moment we should be asking for concessions in return. We certainly should not carry on transferring competencies to the EU without a referendum, as is provided for in the Bill.

Fixed-term Parliaments Bill

Debate between Bernard Jenkin and William Cash

Tuesday 18th January 2011 Commons Chamber

[Mr Cash]

That does not surprise me very much.

One thing that I objected to in clause 2 was the reference to “the number of seats”. We are elected as Members of Parliament, and I am not sure that “seats” are recognised in our constitutional arrangements. Seats do not speak, and vacant seats speak even less. I find the whole proposal utterly incomprehensible. As we well know, the present arrangement—not only in this legislature but in that of the United States and, I would say, all respectable legislatures—is that decisions are taken by a majority of one. So what is this new-fangled idea about a two-thirds majority? It is being introduced for one purpose only: to keep the provisions in the Bill going in perpetuity. That is why I take such exception to the use of the plural in the title “Fixed-term Parliaments Bill”.

This provision also involves an invasion of the principle that one Parliament cannot bind its successor. That is what I really object to, as that principle is central to our democratic process. The people who come in to any given Parliament are not the same as the previous people, and they are certainly not seats or vacant seats. I hope that other Members will agree that this is a very important constitutional question, on which I place a great deal of emphasis, in relation to the new clause that we are discussing.

[Mr Jenkin]

I want to ask my hon. Friend a genuine question. Supposing there were a new Parliament and section 2 of the Act were not renewed, would we not be left with a Fixed-term Parliaments Act that made no provision for an early general election? Is that what my hon. Friend wants?

[Mr Cash]

I do not deny for a minute that that is one of the consequences, but if we were to carry this new clause, it would effectively be the end of the Bill. As I look around the House and see the huge number of people attending this debate, I do not believe that there is the slightest chance of my winning the Division—

--- Later in debate ---

[Mr Cash]

We are, in fact, moving into very difficult and choppy waters. With respect to my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), I do not believe in the so-called constitutional statutes at all. They are an invention in the first instance by Lord Justice Laws. They have a certain spurious credibility, but it does not stack up. My concern is that we will need to use a range of “notwithstanding” arrangements in relation not only to the European Union but to the so-called constitutional enactments or Bills when we want to legislate in the House. We will also need to require the judiciary to give effect to the latest Westminster enactment in that field of endeavour and to state expressly what is intended to bypass this attempt to establish a completely new regime of codified legislation. That will simply become very difficult.

[Mr Jenkin]

That was the purpose of my referring to Lord Phillips’s recent obiter dicta, in which he implied that later Acts of Parliament can effectively repeal the parts of the 1689 Act that protect Parliament’s privileges. I do not think that that is satisfactory, and Parliament needs to think clearly about how we remain in democratic control of this country’s constitutional settlement.

Using legislative techniques, such as those suggested by my hon. Friend, is the direction in which we ought to move. Some people will say that means moving towards a written constitution, but that is to misunderstand our constitution. It is partly written and partly not written. The point is to determine who is in charge. Parliament should be in charge, with the necessary checks and balances between the two Houses. So I very much welcome the debate that my hon. Friend the Member for North East Somerset has initiated on this topic. This debate will run and run, even though we might not be able to agree or divide on his new clause.

I put my name to new clause 5, tabled by my hon. Friend the Member for Stone, partly because it provides an opportunity to remind ourselves of how bad the Bill is. I am afraid that I am appalled that it was introduced in this way. I cannot recall any Government ever introducing a Bill to manipulate the constitution for their own purposes in such a nakedly self-interested way. Clause 2 is simply a fig leaf to ameliorate the problems that arise from fixed-term Parliaments.

Let us remind ourselves of the provisions of clause 2. The two-thirds provision is obviously open to manipulation—assuming that the mechanism does not drag us into disputes with the courts—because if the Government of the day tabled a motion of no confidence in themselves, it would hardly be likely that the Opposition would oppose it, so a general election would still be available at the initiative of the Executive. In a coalition arrangement, the smaller partner might decide not to take part in such a process, meaning that the motion would be opposed and, by arrangement with the Opposition, perhaps passed by only a simple majority. Under the Bill, we are therefore creating arrangements by which a junior coalition partner may switch horses halfway through a Parliament.

I believe that the Liberal Democrats wanted a fixed-term Parliament so that they could swap coalition partners halfway through the Parliament. Lo and behold, we now read in the papers that the Leader of the Opposition and the Deputy Prime Minister seem to be striking up a new friendship—perhaps that heralds the switch. Of course, I am talking hypothetically—the subject is theoretical—but, constitutionally, the possibility exists. It is extraordinary that we are contemplating putting in place arrangements that could bring about a change of Government, Prime Minister and Administration without a general election, but that is what the Bill provides for. The hon. Member for Rhondda (Chris Bryant) seems to be looking at me quizzically.

--- Later in debate ---

[Mr Jenkin]

Inevitably, these debates always depend on speculation about what might happen, which is the one rather unsatisfactory thing about debating the future of the constitution. I have always been regarded as a bit of a pessimist about the European Union, but I did point out to a colleague that, so far, I have been proved right, and if these arrangements remain the same indefinitely, sooner or later I will be proved right again.

The point is that the Bill—except for this new measure in clause 2—is intended to remove the safety valve that allows for an early general election. However, that clause is the worst part of the Bill. As we were told by the Clerk of the House in his memorandum, before the Bill was considered in Committee:

“The Bill brings the internal proceedings of the House into the ambit of the Courts, albeit indirectly by the route of Speaker’s certificates.”

The procedures of the House, votes of confidence, Speaker’s certificates and two-thirds majorities all become potentially justiciable, notwithstanding the Bill of Rights. For that reason, I fully support the new clause tabled by my hon. Friend the Member for Stone.

A vain attempt to remove the courts from considering those matters is made in clause 2(3), which states:

“A certificate under this section is conclusive for all purposes.”

Unfortunately, clause 2(3) is itself justiciable by the courts, because we are putting this into statute. That part of the Bill, which attempts to ameliorate the problems that arise from having fixed-term Parliaments, creates the biggest constitutional headaches for Parliament itself by inviting the courts to intervene in those matters.

[Mr Cash]

On that very question, does my hon. Friend recall that the 1911 Act goes further? It does not end by saying that the certificate

“shall be conclusive for all purposes”,

but adds

“and shall not be questioned in any court of law.”

I would simply add to that the word “whatsoever” because of the very problem that he has mentioned. The Supreme Court, or indeed any other court, may seek to take control over this.

[Mr Jenkin]

I put it to my hon. Friend that that wording in 1911 may well have been sufficient because it would not have entered the heads of the judges in those days to breach the Bill of Rights, but we know that members of the now Supreme Court—note the word “Supreme”—sincerely believe that Parliament is within their purview. We have had the debate about whether the sovereignty of Parliament is a common-law principle—that is, part of judge-made law, rather than an historical fact that exists in its own right as a result of the disputes between the Crown and Parliament in the 17th century.

I believe that it would be helpful if I spoke briefly on this matter, and I take this opportunity to commend my hon. Friend on his new clause. Future Parliaments should have the opportunity to throw out the proposals in clause 2. That would not wreck the Bill, but it would invite questions about what it means and how practical it is. It would certainly impel a future Parliament to consider at the earliest opportunity whether the Fixed-term Parliaments Act should remain on the statute book—I very much hope that it will not—or to put in place much better arrangements to provide for early general elections under a fixed-term Parliament system. The Bill as drafted is nonsense and a potential disaster. If we do not fix it in this place, I hope that those in another place will do so.

European Union Bill

Debate between Bernard Jenkin and William Cash

Tuesday 11th January 2011 Commons Chamber

[Mr Cash]

My hon. Friend is right and I am grateful to him. Indeed, I suspect that many other colleagues, not only on the Back Benches but among the ministerial ranks, agree with me strongly. I also suspect that many Opposition Members feel exactly the same way. I hope, although without too much confidence, that one or two Liberal Democrats might take a similar view, although I would not wish to over-egg the pudding on that score.

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

I happened to be doing a television interview earlier today with Mr Chris Davies, who is a Liberal Democrat MEP. When I asked him what the problem was with incorporating this amendment in the Bill, he said he could not possibly disagree with it. So there are Liberal Democrats who agree, and I simply do not understand why the Government object.

[Mr Cash]

I am grateful to my hon. Friend for that point. Indeed, I would be fascinated to know what would happen if any hon. Member were to appear before their local association and say, for example, “I just want to inform you that the sovereignty of the United Kingdom Parliament in relation to EU law is not reaffirmed.” I think they would get a dusty answer from their constituents, especially as they elected that person to represent them in Parliament.

I am concerned to ensure that the courts are excluded from the construction or interpretation of the nature or legal effect of parliamentary sovereignty. It is of course still inherent in the arrangements, even after the Constitutional Reform Act 2005, that the judiciary are not only quamdiu se bene gesserint, as the Latin has it—in other words, they hold their position during good behaviour—but, in exceptional circumstances, it would be possible for judges to be removed, by an address by both Houses of Parliament, if they were to depart from that dictum. I would have said that some of the remarks relating to the sovereignty of Parliament that have emanated from some judicial circles in recent years have trespassed closely on the question of whether Parliament is the supreme law-making body in this country. I include that new clause because I want to exclude the courts in relation to section 3 of the European Communities Act 1972, but I am not attempting to extend its range beyond that.

I find it strange that the Government say that the Bill does not attempt to embrace the whole doctrine of parliamentary sovereignty. Of course it could not have done so, because the scope of the Bill would prevent that. For practical purposes, my amendments are all devised and worded in relation to EU law, but without prejudice to my concern about the fact that justices of the Supreme Court should not pick and choose between the different kinds of statute to which they apply these attitudes if they were to gain critical mass.

New clause 4 states:

“Nothing in Part 3”—

the provision relating to the status of EU law—

“adversely affects or shall be construed as affecting the existing constitutional law of the sovereignty of Parliament”.

I then add, for the purposes of the scope of the Bill, the words

“in relation to EU law.”

I have provided a fail-safe mechanism and firewall against any attempt by the judiciary to interfere with the sovereignty of the House. I have done that not simply because that sovereignty is centuries old in its derivation, but because, certainly since the mid-19th century, our democratic representation, which leads Members of Parliament to convene in this Chamber and pass laws, has derived its supremacy exclusively from that democratic right.

--- Later in debate ---

[Mr Cash]

The amendments, if passed, would enable us to deal with those questions. In point of fact, I intend to come on to the implications of my new clauses and amendments in relation to a number of matters, including what I regard as the totally unnecessary and unacceptable jurisdiction being given to the European Court and other European institutions over the City of London. I have been talking about that in national newspapers for the best part of two and a half years.

[Mr Jenkin]

Does the previous intervention not underline why we need my hon. Friend’s amendment? There might be no doubt in our minds that Parliament is sovereign and that the functions and powers to which he has just referred are simply delegated to the European Union by this sovereign House, but because such misunderstandings exist, it is time for the House to make a clear declaration that sovereignty and ultimate legal authority still rest with the House of Commons.

[Mr Cash]

I am deeply grateful to my hon. Friend for his intervention, because he is exactly right. Since 1972, there has been an accumulation that has now turned into a tsunami—a sort of Pied Piper of Hamelin, whom we all remember from our childhoods—as the accumulated rumbling and tumbling has gone on and on. We are now faced with a continuous stream of legislation divesting the House of its right to legislate, and this is an opportunity—one not invented by me in terms of the clauses proposed by the Government—to enable us to regain the sovereignty that belongs to the people of this country, the voters in general elections and Members of Parliament elected to the House for the purposes of protecting those voters’ interests.

--- Later in debate ---

[Mr Cash]

That would be the case if it were accepted by the judges in the Supreme Court. It is precisely because we know that they are not inclined to take that view that the amendments are necessary. We are extremely grateful for the evidence that we have received from distinguished witnesses, but the problem is not what they have said, because they aided us in arriving at conclusions in the light of our need to defend parliamentary sovereignty. The problem does not lie in Parliament or with the witnesses; it lies in the assertions of a circle of certain judges and lawyers.

[Mr Jenkin]

I am intrigued by the intervention of my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), who appears to be suggesting that Parliament can simply assert its authority over the judges by some means other than statute. I would like to know by what means it can do so. In the 17th century, it was violence, and I would prefer that Parliament should not have to resort to violence. I think that we should resort to statute, which would govern the judiciary, and we can direct them to behave according to statute.

[Mr Cash]

I am grateful to my hon. Friend, because as I mentioned earlier, under the Constitutional Reform Act, there is no displacement of the doctrine and, indeed, the constitutional principle that judges may be removed by an address of both Houses of Parliament. Furthermore, as my hon. Friend has mentioned the 17th century, the 1610 case of Dr Bonham continues to apply, up to and including the 2005 Act. Lord Chief Justice Coke asserted that the common law could usurp Acts of Parliament—I am paraphrasing, but he was specific—but he was dismissed by Parliament for making such assertions. My hon. Friend’s point is therefore well made, and was part of the constitutional settlement in the Act of Settlement 1701 and is still part of that settlement by virtue of the Constitutional Reform Act 2005.

--- Later in debate ---

[Mr Jenkin]

It is a great pleasure to follow my hon. Friend the Member for Hertsmere (Mr Clappison), who made an absolutely outstanding speech. I should like to echo a great many things that he said, but brevity does not allow. I do, however, point out that the context of the debate is the fact that the current deluge of initiatives, the possible ending of opt-outs, the new legislation that is coming through and the expansion of the legal order do not require the expansion of competences. The competences for those things are already in place, so they will not trigger referendums.

My hon. Friend was right to emphasise a point that my right hon. Friend the Member for Wokingham (Mr Redwood) made. We live with an unwritten constitution, and institutions have powers that are not written down anywhere. If those institutions do not use those powers, suddenly the lights will come on one morning and they will be gone. That is what we have found during our membership of the European Union. Although it seems unthinkable that that could happen to the sovereignty of Parliament itself, we have to recognise that possibility.

The European Scrutiny Committee’s extraordinarily powerful report on clause 18, and the unanimity of the evidence given to the Committee, underline the threat to the sovereignty of this Parliament from the behaviour of our own Government. I would very much like to have welcomed the clause, but I cannot bring myself to do so. It simply does not deliver the reassurance, the finality and the end to ambiguity that we promised our voters at the last general election.

My hon. Friend asked about the nature of sovereignty and power. People tend to use those terms interchangeably, but power is the ability to produce intended effects and can be used legally or illegally, with or without authority. Authority is the legitimate use of power, and legal sovereignty is the ultimate source of authority. This House has had legal sovereignty, pretty well uncontested, for the past 300 years or so, and that lies at the heart of our unwritten constitution and the democratic control thereof, as my hon. Friend the Member for Stone (Mr Cash) so ably explained.

[Mr Cash]

My hon. Friend is making an excellent speech. Does he agree that when those principles were being established in the Bill of Rights in 1688 and 1689, the very reason why the courts were precluded from interfering in internal proceedings in Parliament under article 9 was precisely to deal with that question? It set out that the courts must not get involved in trying to make determinations about parliamentary sovereignty. That was exactly what it was all about.

[Mr Jenkin]

Yes, and without wishing to digress, I point out that Lord Phillips, the current president of the Supreme Court, qualified article 9 of the Bill of Rights in a recent judgment by suggesting that the doctrine of implied repeal applies to it. The Supreme Court is questioning the Bill of Rights itself, and if we are not aware of how parliamentary sovereignty is now being questioned, we are not living in the real world.

I listened to the hon. Member for Caerphilly (Mr David) say that the clause merely reaffirmed the status quo, but the status quo is not a static situation. It is constantly fluid, and the rather lame attempt in the clause to address the situation is causing great concern.

--- Later in debate ---

[Mr Cash]

Does my hon. Friend also agree that, in the context of Van Gend en Loos, Costa and all the other cases that declaration 17, which is attached to the Lisbon treaty, covers, there is no attempt, in declaring the primacy of European law, to define the word “primacy”? Similarly, there is no need to define parliamentary sovereignty. My answer to the Government’s point on that issue is, “Tosh”

[Mr Jenkin]

I will revert to that later. The great danger of the European constitution was that it was explicitly and legally autochthonous. It derived its authority from itself and its own roots. At least the Lisbon treaty reverted to the principle that authority comes from the member states, but it contains the important and dangerous declaration about not only the primacy of EU law, but the EU’s constitutional supremacy over the constitutions of member states. That means our Parliament. I therefore fail to understand how anyone can say that there is no threat from the EU to the sovereignty of this House. That lot over there signed a treaty, without a referendum, that created such a threat. That has given rise to a demand for clarification about the sovereignty of Parliament in some form.

Many of my colleagues—I have talked to them in the Lobbies as well as hearing one or two speaking today—think that clause 18 is not the fight to have. If I may paraphrase my hon. Friend the Member for Daventry (Chris Heaton-Harris), he said that other clauses were much more important. It is not an either/or. It is suggested that somehow a referendum would be a panacea. People seem to think that as soon as we have a referendum—preferably an in or out referendum—we will be able to settle the issue.

The truth is that we may one day quite soon have a referendum on the European Union. It might be on the question of an additional treaty or power, and it might turn into a referendum on in or out. But the actual fact of a referendum will not solve anything. Instead, it will throw into flux the question of our membership of the EU, and the Government of the day will have to decide how to use that referendum to negotiate a new relationship with the EU. We will not stop the trains running through the tunnels and cancel all the flights and the trading. We will still have to have a relationship with the European Union.

Suppose that we wanted to take back control over our trade and to exit the customs union. We would need to have a renegotiation, sector by sector, of every part of the British economy’s trading relationship with the EU. The point about a customs union is that there are no barriers—it is a single trading area. If we were to elect to have a separate trading area—to leave the single market—but we wanted to continue to trade with that market, we would need a trade agreement, so we would need to negotiate one. Immediately, we would need renegotiation.

We constantly hear it said, “Oh, if you Eurosceptics want to leave the European Union, why not be completely honest about it?” The pro-Euros—the people who are dedicated to the annihilation of the sovereignty and independence of this country—always put the issue as a binary question and, to an extent, they are right. It would be a self-fulfilling prophecy—a referendum would become a matter of leave or stay. If we are not sovereign in this Parliament while this country is a member of the EU, the only option is to jettison all the treaties and Acts, so we have very little flexibility.

What we as a Parliament need, in those circumstances, is the ability to negotiate partially, to pick and choose from a menu of options. But that would require Ministers to be able to legislate to suspend this EU instrument or that EU instrument. For example, they would need to be able to suspend EU City regulation so that we can get our competitiveness back. The Prime Minister’s remarks on Monday, about his pro-jobs agenda and a flexible labour market, are another example. The coalition also says that it wants to renegotiate the working time directive to recreate the competitiveness of the British labour market. So Ministers would need the option of passing an Act of Parliament to suspend the application of certain EU instruments, but the question is whether that option will be available to them.

A little earlier, the beef ban was mentioned. I was a humble Parliamentary Private Secretary in the Scottish Office at the time, and we had a lot of discussion about how it could possibly be legal for the EU not just to ban the import of beef into other member states, but to ban the export of British beef from the UK to third-party countries. We were banned from exporting to anywhere, and there was some discussion about whether we could suspend the effect of that legal instrument to stop the EU preventing us from exporting our beef to other countries. The advice was, “Oh no, Minister. You can’t do that because it would put us in breach of the European treaties, infraction proceedings will be taken against us in the European Court of Justice and we will be found to have broken the law. Minister, I must advise you not to break the law, as otherwise you will be personally liable.” Do Members get the point? Ministers have to obey the law and accept legal advice. Unless we sort out the sovereignty of Parliament and make it explicit that Parliament can suspend European Community law in selected circumstances, Ministers will not be in a position to exercise the freedom that Parliament has given them.

--- Later in debate ---

[Mr Cash]

The occupied field is virtually full; very little more can be put into it. Does my hon. Friend also accept that one of the difficulties we are confronting is the question of political will, which we have not yet mentioned, and that the real problem, which emerged from some of his previous comments, is that we have been verging on appeasement for far too long?

[Mr Jenkin]

I totally endorse that comment. There might even be in this coalition, for reasons of political convenience, a will in the wrong direction. It is certainly not what the British people want or what we stood for in our election manifesto.

Provided that the UK courts recognise the sovereignty of Parliament, any legal dispute or clash between the British legal system, under the sovereignty of Parliament, and the European Community legal system, would be resolved by political negotiation. However, that is only the case so long as the UK courts recognise the sovereignty of Parliament and our right to suspend selectively legal instruments. That is a very important negotiation lever. But will that lever be available to Ministers in the future? Will that option be available to Parliament and future Governments? That is where the challenge lies. This is the crux of why we need a true sovereignty clause.

--- Later in debate ---

[Mr Jenkin]

I think I am safe to agree with what the hon. Gentleman says, and that is why clause 18 is not a sovereignty clause, as he says. Therefore, if he agrees with everything that I am saying, I cannot quite understand why he does not want to make clause 18 a sovereignty clause. It would be quite easy to do so. I cannot for the life of me understand this. What could be less contentious than a declaration in the Bill that said, “The sovereignty of Parliament is hereby reaffirmed”? The idea that this would somehow open the issue of parliamentary sovereignty to judicial interpretation seems to me the daftest bit of legal advice of the lot. We make the statute and statute overrules everything, so if Parliament is sovereign and says in statute that it is sovereign, we clobber whoever challenges that; indeed—it is up to Parliament—we could actually sack the judge who tried to do that.

[Mr Cash]

The latest Act would prevail over all the previous Acts. Therefore, in so far as there was any uncertainty or ambiguity in any previous position, including the provisions of clause 18 as drafted, if they were separately enacted, the fact that we had passed an enactment reaffirming our supremacy would be not only a signal to the courts, but a requirement on them to give effect to it.

[Mr Jenkin]

Absolutely, and it would not be open to Lord Hope or any others to say that the sovereignty of Parliament was being qualified bit by bit because the rule of judges was the fundamental principle of the constitution. It would not be open to him to say that, and Parliament would be able to make it clear to him explicitly that that was not in the constitution of this country. We should want to do that, because we are democrats and we believe that we hold sovereignty on behalf of the British people. We want a democratic political settlement in this country, not rule by judges. That is not just the view of a few people on the Conservative Back Benches; I would hazard a guess that, when it comes to the crunch, it is the view of the British people—the constituents we represent. My hon. Friend the Member for Stone represents an all-party Committee that unanimously accepted much of what Professor Adam Tomkins said.

It is now time for Ministers to accept that they might not be right on this. As I said to the Minister for Europe yesterday afternoon, I have been accused for 18 years of being much too pessimistic about the direction of the European Union, but when have I been proved wrong? That pessimism has been borne out time and again. That has not made me a bitter person; it has made me persistent. I congratulate my hon. Friend the Member for Stone on his incredible persistence, because one thing is certain: this argument would not have been advanced with such sincerity and intellectual rigour without his personal intervention. To that extent, it bears his imprimatur, but he speaks on behalf of the British people on these matters.

European Union Bill

Debate between Bernard Jenkin and William Cash

Tuesday 7th December 2010 Commons Chamber

[Mr Cash]

I strongly agree with that sentiment. Indeed, I go further and say that I have always argued for an association of nation states based primarily on trading and political co-operation. Above all else, we must ensure that we make those decisions in the House on behalf of the electorate. Where we find it impossible to make those decisions, it is increasingly argued that it should be done by referendum, when we abdicate the power in the House to the people as a whole.

Clause 18 defies the sovereignty clauses on which the shadow Cabinet, the Whips and Back Benchers voted on several occasions before the general election, using my “notwithstanding” formula. Our report, based on clear evidence from constitutional experts, upholds both the principle and the wording of the “notwithstanding” formula, which I proposed in amendments to the Legislative and Regulatory Reform Bill when we were in opposition. The Whips even asked me to put in their own tellers. As I said to the Minister for Europe last night, he too voted for those provisions. Why not now, therefore, and in the Bill?

We have no hope of resolving the effect and implications of the European crisis on our country, or of reducing by deregulation the impact of European laws on our businesses, including our small businesses, and our deficit, if we do not remove the overall burden of the 50% of economic regulation now on our own statute book, according the House of Commons Library on 13 October.

[Mr Jenkin]

Is not the real question, which those on the Government Front Bench must answer, why they will not put a declaratory clause, notwithstanding the European Communities Act, into the Bill. Are they saying that that itself would put us in breach of the European treaties? I submit that it would not. Should not they accept that by putting a “notwithstanding” clause into clause 18, they would, notwithstanding the European Communities Act, be reaffirming the supremacy of the House, which is long overdue?

[Mr Cash]

I agree, and the evidence that we received indicates that the courts would have to accept that..

We are a parliamentary democracy, not a judicial autocracy. The common law principle, wrongly asserted as the basis for parliamentary sovereignty by the Government in their explanatory notes, gives the courts the interpretative means to walk through the gateway of our constitutional law into their application of EU law, including even the assertions of the European Court of Justice over our own Parliament and our own constitution, as well as our own laws.

Our report repudiates the means whereby the courts could gain, and some of them want to be the ultimate authority in the land. We were against Lisbon and for a referendum as a party. We can veto any treaty in future if we wish to do so, so why not do so? The Bill makes no provision for our current predicament, and provides only relative safeguards for the future, subject to the baleful influence of a Minister’s decision as to whether a referendum would be required or not. One issue has been described by our witnesses as both dangerous and unnecessary, namely clause 18 in the context of the Bill as a whole.

This debate is about trust—the trust that the British people for centuries have granted to their elected representatives to do what is right by them and uphold the democracy for which people fought and died. The Bill betrays that trust by doing nothing to unwind the effects of failed European integration and its impact on us, and does little or nothing to provide security for the future as Europe flounders around in ever-decreasing circles and chaos.

The Bill is an opportunity missed to stop the acquiescence in the failed European integration at every turn, as I put it to the Prime Minister a few days ago. It is also a missed opportunity to reaffirm our parliamentary sovereignty with a proper sovereignty clause. The Bill is a missed opportunity and I shall not vote for it.

Fixed-term Parliaments Bill

Debate between Bernard Jenkin and William Cash

Wednesday 24th November 2010 Commons Chamber

[Mr Cash]

The right hon. Gentleman demonstrates why many people thought that he was one of the foremost leaders of the House of Commons. He understands the mechanics that lie behind such questions. Precisely what he has just said could easily happen. Indeed, many other things are likely to be conjured out of thin air by the wave of a magic wand of the kind that only Harry Potter seems able to use.

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

I cannot understand how Ministers can argue that the Bill takes power away from the Prime Minister and gives it to the House of Commons. In 1979, the intention of the provision would have been to prevent the House causing a general election. The Prime Minister would have been in the driving seat, with 14 days to cook up some kind of new deal to stay in power. How is that taking power away from the Prime Minister?

[Mr Cash]

I entirely agree with my hon. Friend. It is such a shame that more people are not here to hear some of the criticisms that are being made of the Bill. We are not criticising it because we want to be difficult or because we are the awkward squad; we are criticising it because it is a profound constitutional issue. The provision is intended to be permanent, not a will-o’-the-wisp measure that will last a few months, and it will induce permanent constitutional change—it is a constitutional revolution, but a silent one, as I said.

A majority of one is at least understandable and can be calculated. I referred to the German example. Their measure operates on the basis of those in the House itself when the vote is taken, which raises a series of questions about the manner in which the Government’s proposals would operate. If we have a provision that is based on a fixed number of seats, it will not matter at all whether people turn up. Why bother with a Parliament in those circumstances? What would be the point if it were simply a question of the number of seats? Who occupies them, what they think about things or whether they have a view to express would not matter. That is an outrageous proposition, and I cannot believe that my hon. Friend the Minister is prepared to subscribe to such arrant rubbish. The reference in the Bill to the number of seats carries an analogy to the Rump Parliament to extremes.

The proposal is based not on any constitutional principle but the expediency of propping up, if necessary, the “temporary alliance”, which is how the “Oxford English Dictionary” describes a coalition. The measure, for all I know, may run foul of the internal contradictions of putting two parties together that, in certain but not all respects, have entirely contrary views on matters of fundamental constitutional and political importance, such as the alternative vote, which a number of my hon. Friends and I voted against. We are Conservative, and we believe that the alternative vote is the wrong way to go. We believe in first past the post and in a simple majority, because they account for the individual conscience of hon. Members, and not merely the number of seats. Dare I even mention the European question, because that is also part and parcel of the shift in the fundamental balance of power away from this House?

The coalition agreement illustrates that point. At the heart of that arrangement, there are some destructive and some constructive proposals, and some are unworkable. For example, under the agreement, Liberal Democrats have a right or duty to abstain on important matters. The 55% rule proposal was abandoned not only because of its absurdity, but because of opposition to it. The reason for the two-thirds rule is that it will be easier for the Whips to fulfil their masters’ wishes. Their power would be imperilled if a motion were conditional merely on a majority of one. That is the crunch.

The principle of the majority of one proves my point, as the right hon. Member for Blackburn (Mr Straw) indicated in an intervention. I responded to him by referring to the 1979 Division, when there was a majority of one. I find no merit whatever in moving away from the virtues of a simple majority, although I doubt that the Leader of the Opposition, who signed amendment 4, would be so firmly enthusiastic for Margaret Thatcher’s victory in 1979. However, I repeat that I have not tabled that amendment for the sake of the wishes of the Opposition. I simply believe that we adhere to the simple majority.

--- Later in debate ---

[Mr Cash]

Indeed, and my hon. Friend is right on that point, because it is not just about the business; in my judgment, it is about the sense of feeling in the country and the outrage in the House about the policies that are being pursued.

[Mr Jenkin]

rose—

[Mr Cash]

I will give way to my hon. Friend for the last time.

[Mr Jenkin]

It is worth reminding the Committee that the words on the Order Paper in May 1940 were “That this House do now adjourn”.

[Mr Cash]

Indeed, but that was about the sense of outrage over what had been done. That could apply to a Budget, as my hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) said, or to any other situation. It could have applied to Suez or, for example, the Iraq war. For all those reasons, the confidence motion, in whatever terms it is expressed, is just that: do those voting in the House of Commons at the time, by a majority of one, have a sufficient degree of confidence in the behaviour and policies of the Government?

Fixed-term Parliaments Bill

Debate between Bernard Jenkin and William Cash

Monday 13th September 2010 Commons Chamber

[Mr Jenkin]

rose—

[Mr Cash]

rose—